BY  THE  SAME  AUTHOR 


PRISONERS  AND  PAUPERS 

A  Study  of  the  Abnormal  Increase  of  Criminals 
and  Pauperism  in  the  United  States.  Fully 
illustrated.  8°,  pp.  xiii.  +  317  .  .  $1.50 

"  The  writer  of  this  book  has  had  much  and  long  ex- 
sperience  in  the  administration  of  penal  laws,  and  espec- 
ially the  management  of  convicts  in  the  great  prisons  of 
Pennsylvania." — N.  Y.  Tribune. 


THE  SCIENCE  OF 
PENOLOGY 


COLLATED  AND  SYSTEMATIZED  BY 

HENRY  M.  BOIES 

MEMBER  OF  THE  BOARD  OF  PUBLIC  CHARITIES  AND  OF  THE  COMMITTEE 

ON  LUNACY  OF  THE  STATE  OF  PENNSYLVANIA 

AUTHOR  OF  "  PRISONERS  AND  PAUPERS  " 


G.  P.  PUTNAM'S  SONS 

NEW   YORK   AND  LONDON 

Ube  Iknfcfeerbocfeer  press 

1901 


COPYRIGHT,  JUNE,  1901 

BY 
HENRY  M.   BOIES 


Ube  fnuchci  bocNer  prcea,  14ew  L'orh 


TO 

GENERAL  JAMES   A.   BEAVER 

CHRISTIAN  CITIZEN,  SOLDIER,  STATESMAN,  GOVERNOR 

AND  JUDGE 

WHO  FIRST  APPOINTED  HIM 
COMMISSIONER  OF  THE  PUBLIC  CHARITIES  OF  PENNSYLVANIA 

THIS  FRUIT  OF  THAT  ACT 
IS  APPROPRIATELY  AND  RESPECTFULLY 

DEDICATED 

AS  A  TRIBUTE  OF  THE  ESTEEM 
OF  THE  AUTHOR 


PREFACE. 

THE  more  familiar  one  becomes  with  the  details 
of  the  attempts  of  society  to  secure  protection 
from  criminals,  from  early  times  to  the  present, 
the  more  profoundly  he  is  likely  to  be  impressed  with 
their  inordinate  cost  and  their  inutility.  Notwith- 
standing our  tremendous  expenditure  of  effort  and 
money,  crime  continues  undiminished,  and  popular 
apprehension  unrelieved.  The  laws  do  not  protect. 
When  a  great  social  grievance  exists,  it  becomes 
every  one's  duty  to  endeavor  to  discover  its  cause 
and  cure.  This  responsibility  has  been  very  gen- 
erally recognized.  Many  valuable  and  learned 
books  have  been  written,  scientific  studies  published, 
and  profitable  discussions  conducted,  which  have  so 
expanded  our  knowledge  that  it  appears  possible  to 
propose  a  complete  solution  of  the  problem.  The 
comprehensiveness  of  my  public  official  duties  has 
naturally  inclined  my  attention  to  the  entire  range 
of  criminal  causes  and  effects,  from  birth  to  the  end 
of  life,  in  every  diversity  of  social  environment. 
Study  and  observation  of  this  general  nature  have 
convinced  me  that  the  defense  of  society  against 
crime  cannot  be  successfully  conducted  without  a 
complete  and  definite  plan,  organized  upon  a  consis- 
tent theory  and  system,  and  that  there  is  an  urgent 


vi  Preface 

necessity  for  the  collection  and  arrangement  of  the 
various  important  discoveries  in  penology  into  such 
a  special  system  or  science.  The  failure  of  our 
codes  is  due  partly  to  this  lack  of  plan  and  system, 
and  partly  to  the  fallacious  theory  on  which  they 
have  been  formulated.  It  has  been  my  purpose  to 
make  this  clear  in  the  present  treatise. 

As  the  purpose  of  penology  is  entirely  utilitarian, 
and  necessarily  confined  to  mortal  existence,  its 
methods  and  means  are  logically  and  naturally  prac- 
tical and  objective,  rather  than  ethical,  religious,  and 
subjective.  The  human  result  is  identical  when  it 
is  attained  by  either  course,  but  the  waning  power 
of  subjective  influences  over  men,  as  what  is  called 
civilization  advances,  and  the  very  remarkable  suc- 
cess which  attends  objective  reformative  measures, 
directed  primarily  to  perfecting  the  personal  organ- 
ism in  order  to  secure  correct  function,  suggest  a 
very  important  and  fruitful  subject  for  the  consider- 
ation of  philanthropists,  religious  leaders,  and  states- 
men. The  influence  of  preachers  has  declined  more 
on  account  of  the  change  in  the  receptiveness  of 
their  hearers  than  in  the  ability  of  the  preachers. 
The  first  appeal  of  religious  reformers  was  to 
the  emotions,  then  to  the  reason  or  intellect ; 
neither  now  receive  their  early  response.  These 
appeals  have  exhausted  their  power  to  impress  men 
in  their  present  stage  of  development.  This  may  be 
due  to  inordinate  intellectual  culture  and  atrophy  of 
the  moral  organs.  The  sociological  teaching  of 
penology  is  that  the  whole  man  must  be  transformed 


Preface 


Vll 


and  made  impressionable  before  he  can  be  easily  re- 
formed ;  that  the  most  effective  work  will  be  on  the 
object  rather  than  on  the  means  or  subject  of  con- 
version. It  is  possible  for  a  skilled  artisan  to  do 
work  with  an  inferior  machine,  out  of  adjustment, 
but  not  the  best  kind  or  the  largest  amount  of  work. 
If  he  is  intelligent  he  will  first  of  all  correct  the  de- 
fects of  the  machine  with  which  he  is  to  operate, 
and  then  proceed  to  do  his  work  with  it.  So  the 
first  task  of  the  reformer  is  to  put  the  human 
machine  in  order  before  he  attempts  to  make  it 
work  righteously.  Statesmen  are  warned  by  pe- 
nology not  to  forget  that  moral  decadence  under- 
mines the  mutual  confidence  which  is  essential  to 
social  comfort,  material  prosperity,  and  common 
action;  and  destroys  the  patriotism  of  a  people. 
Public  officials  and  legislators  who  may  be  called 
upon  to  consider  and  act  upon  various  projects  for 
the  protection  of  the  public  from  crime  require  a 
general  plan  to  guide  their  action,  just  as  a  builder 
does  the  plan  of  the  architect,  or  the  landscape  gar- 
dener a  scheme  of  planting.  Courts  of  justice  are 
governed  by  laws,  authorities,  precedents,  and 
principles  ;  criminal  lawyers  by  accepted  stand- 
ards of  practice.  Systematized  penology  presents  a 
consistent  and  uniform  scheme  of  principles  to  which 
all  may  conform  for  the  common  good. 

I  have  endeavored  to  collect  in  this  book  the 
principal  data,  to  arrange  them  in  order,  and  to 
state  the  generally  accepted  conclusions  of  penolo- 
gists,  which  may  be  deemed  to  have  reached  the 


viii  Preface 

fixed  stability  of  scientific  facts,  without  encumber- 
ing the  context  with  the  history  of  the  processes  by 
which  the  conclusions  have  been  reached,  or  the  full 
array  of  arguments  by  which  they  are  supported, 
if  this  history  and  argument  are  easily  accessible  by 
reference.  I  have  made  these  references,  wherever 
they  seemed  useful,  to  those  works  which  supply 
the  fullest  information  and  are  of  acknowledged 
authority. 

The  Science  of  Penology  is  offered  the  public 
in  the  hope  that,  whatever  imperfections  may 
appear,  it  may  help  to  awaken  a  wider  interest  in 
the  necessity  for  a  more  rational  treatment  of  the 
violators  of  law,  and  assist  those  who  make  and 
execute  the  laws  in  the  discharge  of  their  duties  to 
the  greatest  public  advantage,  by  presenting  a  com- 
plete plan  to  which  all  details  can  be  adjusted. 

My  grateful  acknowledgments  are  due  to  many 
earnest  philanthropists  and  penologists  who  have 
cheerfully  assisted  and  encouraged  me  in  the  prep- 
aration of  this  work.  I  hope  each  one  will  accept 
this  general  expression  of  my  sense  of  great  obliga- 
tion to  him  without  the  mention  of  any  names, 
which  might  be  embarrassing  to  some  who  should 
be  named,  and  others  who  might  by  chance  be 
omitted. 

H.  M.  B. 

SCRANTON,  PA., 

February  15,  1901. 


CONTENTS. 

SECTION  I— DIAGNOSTICS. 

CHAPTER  I. 
THE  SCIENCE  OF  PENOLOGY  DEFINED. 

PAGE 

The  Social  Science — Penological  Science — Its  Province  and  Objects 

—  Its  Importance  —  Number  of  the  Criminal  Class  —  Social  Cost 
of  Crime — Necessity  of  a  Reformation  in  Treatment  of  Criminals 

—  Subdivisions  of  the  Science  —  Diagnostics  —  Therapeutics  — 
Hygienics    ...........         3 

CHAPTER  II. 

THE    CRIMINAL    CLASS. 

The  Law  of  Criminal  Saturation — Decrease  of  Crime  during  Historical 
Period — Who  Compose  the  Class — Present  Constancy  of  its 
Numbers — Variation  in  its  Numbers  on  Account  of  Variation  in 
Laws — Necessity  of  Comprehensive  Treatment — The  Five  Cate- 
gories— Their  Characteristics — General  Appearance  and  Char- 
acteristics of  this  Class — Presumptive  Criminals — Subdivisions 
Pathological — Sources  and  General  Causes — Nature  of  the  Dis- 
ease and  Sanitary  Measures  .  .  .  .  .  .  15 

CHAPTER  III. 

CRIME. 

Crime  Defined — Three  General  Classes — Purview  Df  Human  Law  is 
Social — Classification  by  Objective  Nature — Distinction  between 
Crime  and  Criminality — Moral  Depravity  the  Source  of  Crime — 
Depravity  a  Disease — Sources  of  the  Disease — Immediate  Causes — 

ix 


Contents 


PAGE 


Intrinsic  Causes — The  Synectic — The  Proegumenal — The  Proca- 
tarctic — The  Method  of  Cure — Criminal  Responsibility — Extrane- 
ous Causes — Want — Changes  of  Laws  and  their  Enforcement — 
Neglects  and  Defects  of  Child  Training — Statistics  of  Illiteracy — 
Concentration  of  Population — Unrestricted  Propagation  of  Crim- 
inals— Necessity  of  Prevention — Number  of  Convicts  does  not 
Measure  the  Quantity  of  Crime  .......  30 

CHAPTER  IV. 

THE  DETECTION  AND  IDENTIFICATION  OF 
CRIMINALS. 

The  Criminal  at  Liberty  the  Danger — Heredity  and  Human  Progress — 
All  Criminals  to  be  Kept  Confined — Scientific  Treatment  in 
Prison — Skilful  Diagnosis  Essential  to  Cure  ;  to  Future  Prosecu- 
tion—  Identification  of  Presumptive  Criminals  —  The  Bertillon 
System — Methods  and  Details  of — Explanation  of  its  Use — Proof 
of  Accuracy — Indispensable  Advantages — National  Bureau  in 
America — Importance  and  Value — Number  of  Signalments  in 
France,  1899 — A  System — Use  to  Prevent  Immigration  of  Crim- 
inals— Census  Signalment 52 


CHAPTER  V. 

CRIMINAL    CODES. 

Origin  of  the  Criminal  Codes — Unscientific  Development  of  them — 
Consequent  Futility,  Shown  by  Recidivism — Theory  on  which 
they  are  Founded  and  of  Severe  Penalties,  False — Theory  of 
Punishment  Inutile — Abuse  of  Legal  Privileges — Of  Presumption 
of  Innocence — Corruption  of  Juries — Technicalities  Preverted  to 
Delay — Security  from  Second  Jeopardy — Evils  of  Judicial  Dis- 
cretion— Procuration  of  Perjury — Irrational  Incongruity  of  Pen- 
alties—  Murders  and  Lynchings — The  Single  Sentence — Criminal 
Madmen — Instinctive  and  Habitual  Criminals — Single  Offenders 
— The  State  the  Only  Legal  Administrator  of  Criminal  Laws — 
Drunkards — Prostitutes — Category  of  Criminality  Disclosed  at 
Trial — The  Intermediate  Sentence — The  Real  Province  of  Crim- 
inal Codes — Necessity  for  a  New  Code — Proposed  System  of 
Penalties — State  Administration  of  Reformatory  and  Penal 
Prisons — The  Pardoning  Power  .......  72 


Contents  xi 


CHAPTER  VI. 

THE    DEFENSE    OF    SOCIETY,    AND    STATE    CONTROL 
OF    CRIMINALS. 

PAGE 

Recidivists  the  Main  Body  of  the  Hostile  Force — The  Most  Danger- 
ous— Proportion  of,  among  Convicts — Must  be  Cured  before 
Discharge — Benefits  of  their  Confinement — Necessity  of  Uni- 
formity in  the  Criminal  Codes  of  all  States — Single  and  Juvenile 
Offenders  The  Presumptive  Category  —  Obligation  of  the  State 
to  Execute  its  Own  Laws — County  Jails  a  Relic  of  Early  Con- 
ditions— Their  Present  Disadvantages — State  Care  a  Duty  to  the 
Criminal — Economy  of  State  Care  ......  95 

SECTION  II  —  THERAPE  UTICS. 

CHAPTER  VII. 

LEGAL    PENALTIES. 

Punishment  the  Natural  Reaction  of  Violated  Law — A  Necessary 
Sequence  of  Crime — Justice  Impossible  in  Legal  Penalties — Pen- 
alties Deterrent  with  Majority — Function  of  Legal  Penalties — 
Effective  According  to  Restraint  and  Deterrence — Now  Generally 
Reduced  to  Fines  and  Imprisonment — The  Death  Penalty — 
Homicides  and  Executions  in  the  United  States — Capital  Punish- 
ment Most  Effective  Restraint  and  Deterrent — Murderers  In- 
capable of  Restraint — Capital  Punishment  no  Longer  Enacts 
Public  Opinion — Castration  for  Sexual  Crimes — Imprisonment 
for  Felonies — Continuous  until  Criminality  is  Cured — Hope- 
fulness of  Reformation — Reformatories  and  Indeterminate 
Sentence  for  "Madmen,"  "Instinctive,"  and  "Habitual  Crim- 
inals " — First  Offenders  not  to  be  Imprisoned — Indemnity — How 
to  be  Exacted — Simplification  of  Punishments  by  Science  .  .  in 

CHAPTER  VIII. 

THE    INDETERMINATE    SENTENCE. 

Substitution  of  Reformation  for  Punishment — Origin  and  Develop- 
ment of  the  Reformatory  System — Comparison  of  Results  at 
Elmira  and  in  New  York  Prisons — Success  of  Reformatory  System 
Demonstrated  by  Z.  R.  Brockway — His  Statement  of  its  Prin- 
ciples— Punishment  by  Reformation  the  Natural  Reaction — The 


xii  Contents 


PACK 


Theory  of  Reformation  is  the  Cure  of  Disease — Time  Limits  for 
Cure  Absurd — Varieties  of  the  Disease — State  of  Opinion  in  the 
World  concerning  the  Indeterminate  Sentence — Physical  Ob- 
stacles to  its  Adoption — Metaphysical  Obstacles — What  the  Real 
Indeterminate  Sentence  is — Who  shall  Pronounce  the  Cure? — 
Existing  Practice  Devolves  the  Decision  on  Wardens — Objections 
— Advantages — Objections  to  Reformatory  System  Considered — 
The  Tribunal  of  Discharge  and  Appeal — To  whom  the  Sentence 
should  be  Applied  . 133 

CHAPTER  IX. 

THE    REFORMATION    OF    CRIMINALS. 

Reformation  versus  Punishment — Reformation  Constitutes  the  Science 
of  Penology — Its  Scientific  Basis — Its  Philanthropic  and  Economic 
Objects — The  Five  Vital  Elements — General  Characterization  of 
Criminals  by  Brockway — Necessity  of  Classification — Principle 
of  Classification  Adopted  by  Brockway — The  Law  of  Habit — 
Correction  of  Evil  Habits — Physical  Line  of  Direction — Mental — 
Moral — The  Physical  Means  Used — By  the  Physician — By  the 
Superintendent — Routine  at  Elmira — Cure  of  the  Minor  Defects 
of  the  Seriously  Defective — General  Defectives — The  Dietary — 
Technical  Training— The  Military  Organization — Discipline — 
Physical  Punishments — Commissary,  and  Bertillon  Records — 
The  Mental  Means,  and  School  of  Letters — Reading — The  Moral 
Means — Influence  of  Example — Of  the  Warden — Moral  Train- 
ing Incessant — The  Proper  Subjects  for  Reformatory  Treatment — 
Labor  in  Reformatories — Conditions  of  Release — Parole — Ex- 
perience at  Elmira — Necessary  Time  of  Treatment — Reforma- 
tories to  Separate  the  Incurable — Incurables  to  be  Consigned 
to  Penitentiaries — Size  of  Reformatories — Costs — Female  Re- 
formatories  158 

CHAPTER  X. 

DRUNKARDS    AND    PROSTITUTES. 

Nature  of  the  Disease  of  Drunkenness — As  a  Social  Crime — Massachu- 
setts Statistics — General  Data — National  Cost  of  Drunkards  as 
Criminals — Folly  of  Existing  Treatment — Plea  of  Drunkenness 
in  Mitigation  of  Crime — Secondary  Cause  of  Crime — A  Crime 
in  Itself — Importance  of  its  Repression — A  Curable  Disease — 
Penal  Aspects  of  Drunkenness — State  Inebriate  Asylums — Laws 
Needed — Right  of  Society  to  Suppress  it — Prostitution — As  a 


Contents  xiii 


PACK 

Crime — Evils — Prevalence — The  Action  Needed  from  the  State — 
Summary  of  Benefits  to  be  Derived  from  State  Control  of  these 
Crimes  .  .  .  .  .  '  .  .  .  .  .  .  193 

CHAPTER  XI. 

THE    CRIMINAL    INSANE    AND    INSANE   CONVICTS. 

Effect  of  the  Discoveries  of  Medical  Science  on  Criminal  Culpability — 
Varieties  of  Insanity — Plea  of  Insanity  in  Criminal  Trials — 
Irresponsibility  of  the  Insane — The  Criminal  Insane — Their 
Crimes — Professional  Scientific  Alienists — Doctrine  of  Irresponsi- 
bility more  Effective  Protection  than  Dogma  of  Punishment — 
Idiots — Epileptics — First  Recognition  of  Doctrine  of  Irresponsi- 
ibility — Second  Step — German  Code — French  Penal  Code,  and 
American  Practice — Resume  of  Legal  Precedents — Present  Legal 
Status  not  Good  Law — Expert  should  Appear  for  the  State — 
Question  of  Insanity  One  of  Fact,  Requiring  Judicial  Decision 
by  an  Expert — Expert  Professional  Alienists  Needed — Insane 
Criminals  to  be  Removed  from  Prisons — Feigned  Insanity — 
State  Commission  of  Alienists — State  Hospitals  for  Insane  Crim- 
inals— Separate  from  Prisons — And  from  General  Hospitals  for 
the  Insane — Where  now  Established — Expiration  of  Sentence  of 
the  Insane — When  Cured  Previous  to  Expiration  of  Sentence — 
Disposition  of  the  Insane  under  Sentence  of  Death — Of  All  Others 
when  Cured — Disposition  of  Cured  Life-term  Prisoners  .  .  212 

CHAPTER  XII. 
THE  INSTINCTIVE  AND  HABITUAL  CRIMINAL. 

Proportion  of  Recidivists — The  most  Dangerous  and  least  Controlled 
Category — The  Reprobates — The  Instinctive  Criminal  easily 
Identified — How  to  be  Disposed  of — The  Habitual  Offender — 
Proportion  of — An  Anomaly  of  Criminal  Jurisprudence — Gener- 
ally a  Non-Resident — Necessity  of  Bertillon  Identification — 
Product  of  Social  Neglect — Society's  Duty  to  the  Discharged 
Prisoner — The  Discharge  on  Parole  ......  234 

CHAPTER  XIII. 

JUVENILE    AND    FIRST    OFFENDERS PROBATION 

AND    PAROLE. 

The  most  Extensive  and  Difficult  Branch  of  Penology — Juve.iile 
Offenders  Defined — The  Criminal  Age — Statistics  and  Deductions 


xiv  Contents 


— The  Problem  Stated — Its  Solution — Probation  Officers — Sen- 
tence for  Light  Offenses — When  Severe  Measures  are  Necessary — 
For  Crimes  of  Lust — For  Felonies  and  Heinous  Crimes — Insane 
and  Defectives — The  Probation  System — Requirements  and  Ad- 
vantages— Experience  of  Massachusetts — Losses  by  Failure  to  Use 
the  Privilege — Possible  Saving — Arrests  for  Drunkenness — For 
Other  Offenses — Parole — Duty  of  State  to  Discharged  Prisoners — 
How  to  be  Exercised — Conditions  of  Parole — Probation, 
Reformation,  and  Parole .  245 

CHAPTER  XIV. 

PRISON    LABOR. 

The  Problem  Stated — Public  and  Legislative  Discussions — An  Insig- 
nificant Item  in  Industrial  Economics — Prisoners  should  Earn  as 
Much  as  Possible  toward  their  Maintenance — Concentration  of 
Prison  Labor  on  a  Few  Products  Objectionable — An  Important 
Reformatory  and  Penal  Consideration — Necessary  for  Discipline 
— High  Concern  to  Prisoners'  Health  and  Training — Essential 
Element  of  Reformation — Obligation  of  State  to  Employ  Prison- 
ers— The  Fundamental  Principle — How  Tried  and  Failed — Con- 
clusions of  National  Industrial  Commission,  1900— Conclusions 
Discussed — Restriction  of  Hours  of  Labor — Prohibition  of 
Machinery — Boycott  of  Prison-made  Goods — "  State's  Use"  Plan 
— Labor  in  Penitentiaries — Life  Convicts  in  Public  Works — Labor 
in  Jails  and  Reformatories — In  Industrial  Schools  and  Asylums — 
Number  of  Jail  Prisoners  in  Idleness  and  Results — Working  out 
Fines  as  a  Remedy — Local  Public  Work  for  Short-term  Prisoners 
— General  Scientific  Scheme  of  Prison  Labor — Social  Duty  of 
Employing  the  Discharged  Prisoner  ......  264 

CHAPTER  XV. 

THE    INSTALLATION  AND    ADMINISTRATION    OF    PENAL 
AND    REFORMATORY    INSTITUTIONS. 

The  Kinds  of  Institutions  Enumerated — Police  Stations — Work- 
houses— County  Jails — Who  should  be  Committed  to  Jail — 
Location  and  Construction  of — Industrial  Schools — For  Boys 
— For  Girls — Reformatories — Administration — Female  Refor- 
matories— Inebriate  Asylums — Criminal  Insane  Asylums — Peni- 
tentiaries— Location — Accommodations  —  Discipline  —  Corporal 
Punishment — Dietary — The  Wardens — Prison  Laboratories — 
Summary 287 


Contents  xv 

SECTION  III.— HYGIENICS. 
CHAPTER  XVI. 

POLICE    PREVENTION. PROHIBITION    OF    THE 

MARRIAGE    OF    THE    UNFIT. 

PAGE 

Excessive  Arrests — Proportion  of  Convictions  to  Arrests — Illustrated 
by  Boston  Statistics — Possible  Saving — Municipal  Police  a  Sur- 
vival of  Medieval  Necessities — Has  Become  the  Chief  Instrument 
of  Enforcing  Law — Logically  a  State  Force — Should  Execute 
all  Constabulary  Functions — Its  Use  in  Riots — Organization  and 
Discipline — Relief  of  the  Military — Other  Advantages — Care  over 
Children  in  Public  Places — The  Prohibition  of  the  Marriage  of 
the  Unfit — Constitutional  Power  of  the  State — Heredity — The 
Contrast  of  the  Edwards  and  the  Jukes  Families — Such  Processes 
Constant — The  Preventive  Legislation  Necessary — Advantages 
to  be  Secured 311 

CHAPTER  XVII. 

PRESUMPTIVE    CRIMINALS  I    THE    MINOR    WARDS 

OF  THE  STATE DEFECTIVE,   DELINQUENT, 

NEGLECTED,    AND    ABANDONED 
CHILDREN. 

Necessity  of  State  Care  over  All  Children — Presumptive  Criminal 
Source  of  Three  Fourths  of  the  Criminal  Class — Training  of  Chil- 
dren Easier  than  Reformation  of  Criminals — The  State  alone 
Competent  to  Treat  this  Class — State  Care  not  necessarily  In- 
stitutional— Modern  Family  Cottage  Institutions — Authority  of 
the  State  Superior  to  that  of  the  Parent — The  Subdivision  of 
Minor  Wards  of  the  State  for  Treatment — Legal  Prohibitions 
Needed — Juvenile  Courts — State  Boards  of  Children's  Guardians 
— Their  Duties  and  Powers — The  Five  Classes  of  State  Juvenile 
Institutions — Truant  Schools — Industrial  Schools — State  Chil- 
dren's Aid  House — State  Orphanages — Children's  Hospitals — 
Five  Kinds  of  Asylums  Needed — Evils  of  State  Subsidies  to  Pri- 
vate Institutions — Illustrated  by  Experiences  in  New  York — 
Census  of  Children  under  Charitable  Care — Results  of  Private 
Charity  in  Child  Saving  .  .  .  .  .  .  .  332 


xvi  Contents 


CHAPTER  XVIII. 
THE  EDUCATION  OF  CHILDREN  IN  PUBLIC  SCHOOLS. 

PACE 

Proportion  of  the  Criminal  Class  due  to  Defective  Parental  Training — 
Early  Training  the  Best  Prevention  Known — Necessity  of  State 
Supervision — Washington's  Injunction — National  Legislation, 
and  Recommendations  of  Later  .  Presidents — General  Grant's 
Recommendations — Of  Later  Presidents,  and  Congressional 
Neglect — Evidences  of  the  Failure  of  Existing  Methods — Percent- 
age of  National  Illiteracy — Percentage  of  School  Enrollment — 
Brevity  of  Attendance — Good  Citizenship  the  Only  Object  of  State 
Supervision — Cause  of  Failure  the  Abolition  of  Moral  Training 
from  the  Schools — Their  Control  by  Local  Boards — The  Incom- 
petence of  Teachers — Failure  Inevitable  under  the  Conditions 
— Duty  of  Congress — Private  Initiative  in  Educational  Matters 
Unsatisfactory — Government  Initiative  and  Control  Necessary — • 
The  Congressional  Action  Required — State  Legislation — Mental 
Education  alone  Pernicious — Duties  of  District  Directors — Great 
Value  of  Physical  Education — How  Conducted — Principles  of 
Mental  Training — Public  Morals  the  Gauge  of  Civilization — 
Moral  Training  the  Supreme  Object  of  the  Public  School — What 
Constitutes  Morality — The  United  States  a  Christian  Nation — 
Its  Public  Education  must  be  Christian — The  Bible  its  Founda- 
tion— Correction  of  Evil  Habits — Non-sectarian  Religious  In- 
struction— Inculcation  of  Moral  Principles — Knowledge  of  the 
Duties  of  Parenthood — How  Imparted — Special  Education  of 
Teachers — Conclusion  ........  355 

CHAPTER   XIX. 

KINDERGARTENS    AND    ORPHANAGE    TRAINING. 

The  Vital  Importance  of  Good  Maternal  Culture  in  Early  Infancy — 
The  State  must  Insure  the  Education  of  All  its  Females  in 
Maternal  Duties  —  Ignorance  of  this  Prevalent  among  the  Best- 
Educated  —  Importance  of  Competent  Nurses  and  Governesses 
Need  of  Training  the  Middle  Class — Help  as  well  as  Instruction 
Required  by  the  Lowest  Class — Necessity  of  State  Instruction 
on  Account  of  Negroes  and  Immigrants — Obligation  upon  the 
State  to  Insure  Competence  of  Mothers — To  be  Secured  through 
the  Kindergarten — The  Idea  of  the  Kindergarten — Confirmed  by 
Science  —  Universality  of  the  Law  of  Development  —  Froebel's 
Object — Kindergartens  to  Supplement  Maternal  Deficiencies  — 


Contents  xvii 


PAGE 

Growth  of  Kindergartens — Results  Observed — Mother  Training 
Essential  Part  of  Public-School  System — Kindergarten  Normal 
Schools  —  Kindergartens  a  Subprimary  — Who  should  Attend — 
Compulsory  Attendance  —  State  must  Care  for  Every  Child  — 
Kindergartens  in  Orphanages  —  Regulations  —  Only  State  Care 
Adequate  —  Moral  Obligation  of  the  State  .....  392 

CHAPTER  XX. 

PENOLOGICAL  ETHICS  IN  THE  ADMINISTATION 
OF    LAW. 

Maintenance  of  Law  the  Special  Duty  of  Lawyers — Economic  Interest 
of  this  Duty  to  them — Criminal  Law  the  Foundation  of  All  Laws 
—  The  Criminal  Lawyer  —  Perversion  of  Legal  Talent  to  the 
Escape  of  the  Guilty — Honor  of  Defense — Duties  of  Judges — 
Ethical  Laws  of  Trial  —  Illegal  Verdicts  by  Juries  —  Patriotic 
Duty  of  Good  Citizenship — The  Public  Prosecutor — The  Advo- 
cate of  the  Defense — Mill's  Rules  of  Ethics — Certainty  and  Ce- 
lerity of  Punishment  equally  Essential  .....  416 

CHAPTER   XXI. 

A  COMPENDIUM  OF  THE   PRINCIPLES   OF   SCIENTIFIC 

PENOLOGY 434 

APPENDIX  A— Statistics  of  All  the  Cities  of  the  United  States 
Having  100,000  Inhabitants  and  More  in  1900,  Showing  Estimated 
Arrests  and  Convictions  for  the  Year  1899  .....  448 

APPENDIX  B— Statistics  of  Illiteracy,  Suffrage,  and  Crime  in  the 

United  States  for  1900 .     450 

APPENDIX  C — Number  of  Homicides,  Executions,  and  Lynchings 
in  the  United  States  Collected  by  the  Chicago  Tribune  from 
Newspaper  Reports  for  Eighteen  Years  .....  452 

INDEX     ...  .  .     453 


SECTION  I. 
DIAGNOSTICS 


SECTION  I. 
DIAGNOSTICS. 


CHAPTER  I. 

THE  SCIENCE  OF  PENOLOGY  DEFINED. 

The  Social  Sciences — Penological  Science — Its  Province  and  Objects — Its 
Importance — Number  of  the  Criminal  Class — Social  Cost  of  Crime — 
Necessity  of  a  Reformation  in  Treatment  of  Criminals — Subdivisions 
of  the  Science — Diagnostics — Therapeutics — Hygienics. 

"  A  RT  is  long,"  but  science  is  perpetual,  ever 
^i  living,  ever  growing.  The  life  of  art  is  but 
the  sap  of  science.  Art  is  the  flower  which  blooms 
on  the  tree  of  science,  but  the  tree  is  perennial ; 
slow  of  growth  and  everlasting.  Time  adds  lay- 
ers of  strength  to  its  trunk,  new  branches  to  the 
ever  expanding  body,  and  forever  feeds  its  vitality 
but  brings  to  it  no  germ  of  decay.  This  is  the 
tree  of  human  knowledge,  whose  unfolding  leaves 
are  for  the  healing  of  the  nations.  Science  is  an 
intellectual  energy  which  is  never  lost.  The  ex- 
pansion of  sociological  science  has  been  greater  in 
the  last  quarter  of  the  nineteenth  century  than  in 
all  preceding  time.  Civilized  mankind  enters  the 
twentieth  century  with  a  much  greater  knowledge 


The  Science  of  Penology 


of  and  more  general  interest  in  the  laws  which  af- 
fect the  commonweal  than  it  has  ever  before  pos- 
sessed. "  Know  thyself"  is  the  primordial  basis  of 
the  efficiency  of  science  to  society  as  well  as  to  in- 
dividuals, so  that  humanity  has  now  acquired  an 
unprecedented  power  over  its  own  welfare.  The 
laws  of  cause  and  effect  are  recognized  as  operative 
in  social  as  well  as  in  material  nature.  Sociology 
is  admitted  by  common  consent  into  the  ranks  of 
the  positive  sciences,  both  as  a  whole  and  with  its 
subsidiaries, —  history,  religion,  jurisprudence,  eco- 
nomics, politics,  ethics,  pauperism,  hygiene,  medi- 
cine, charities,  criminology,  penology,  and  others. 
But  while  many  of  these  elementary  branches  have 
been  organized  and  perfected  for  human  use,  and  a 
vast  fund  of  information  and  experience  accumu- 
lated concerning  Penology,  which  is  in  fact  the  main 
trunk  of  sociology,  no  complete  and  independent 
statement  of  the  theory  and  system  which  is  the 
natural  product  of  this  accumulation  of  knowledge 
has  yet  been  made.  This  is  the  more  surprising 
when  we  consider  that  it  was  the  first  rod  of  regu- 
lation which  grew  out  of  the  virgin  soil  of  social 
existence.  When,  in  the  very  beginning,  several 
human  beings  became  associated  together,  a  law 
protecting  individual  life  and  rights  was  necessary, 
and  enforced  by  penalties.  Protection  from  vio- 
lence and  crime  was  the  origin  of  all  law, —  the  sub- 
ject which  engrossed  the  attention  of  the  earliest 
lawmakers  of  every  people  and  which  has  been 
most  constantly  before  legislators  until  the  present 


The  Science  of  Penology  Defined        5 

time.  Penology  was  not  only  the  origin,  but  it  is 
the  basis  and  the  object  of  all  human  law,  the  stem, 
as  we  have  said,  from  which  all  the  social  sciences 
branch.  Scientists,  statesmen,  philosophers,  and 
penologists  have  apparently  been  allured  away 
from  the  main  subject  by  the  attraction  of  discov- 
ery and  novelty  in  special  directions. 

Penology  may  be  defined  as  the  science  of  the 
protection  of  society  from  crime  by  the  repression, 
reformation,  and  extirpation  of  criminals.  It  con- 
sists of  such  positive  knowledge  of  these  subjects 
as  is  comprised  in  the  whole  body  of  scientific  ob- 
servation, investigation,  experimentation,  and  rea- 
soning upon  its  particular  phenomena ;  co-ordinated, 
arranged,  and  systematized  for  the  use  of  mankind. 
It  is  the  discovery,  formulation,  and  explanation  of 
the  immutable  laws  which  govern  and  regulate  suc- 
cessful action  for  the  defense  of  society  against 
criminality.  This  knowledge  is  now  sufficiently 
extensive  and  exact,  and  the  consensus  of  intelli- 
gence concerning  these  laws  and  principles  ample 
enough,  to  warrant  the  presentation  of  a  distinct  sys- 
tem which  will  constitute  a  complete  and  indepen- 
dent science.  "  Prison  science  is  working  out,  as  it 
can,  in  the  present  progress,  a  methodical  system  of 
Penology  which  is  in  accord  with  the  true  science  of 
our  common  human  nature."1  As  knowledge  ex- 
pands, a  return  to  specialization  becomes  necessary 
for  achievement.  The  natural  limitations  of  the  brain 

1  The   Reformatory  System  in  the   United   States,  International    Prison 
Commission,  1900,  Z.  R.  Brockway,  p.  27. 


The  Science  of  Penology 


and  intellect  restrict  the  capacities  of  individuals, 
while  the  general  diffusion  of  intelligence  stimulates 
competition,  increases  the  requirements  of  success, 
and  compels  a  concentration  of  effort  along  partic- 
ular lines  in  order  to  overcome  existing  conditions. 
Generalizations  cease  to  be  impressive  or  inspiring. 
Specific  statement,  definite  principles,  positive  laws, 
and  complete  system  are  essential  in  every  depart- 
ment of  science. 

This  has  become  especially  important  in  Penology, 
where  the  dense  outgrowth  of  legislation  has  almost 
hidden  the  original  purpose,  while  the  investigations 
of  sociologists  and  criminologists  have  developed 
and  clearly  demonstrated  the  nature  and  causes  of 
crime  and  criminality,  the  several  physical,  mental, 
and  moral  characteristics  of  the  criminal ;  and  ex- 
perience has  proved  the  absolute  failure  of  crim- 
inal law  in  the  past  to  attain  its  objects.  It  is 
manifest  that  criminal  law  and  codes  are  the  spo- 
radic growths  of  past  social  circumstances  and  neces- 
sities, without  any  consistent  theory  or  principle  ; 
devoid  of  order,  harmony,  or  system.  When  any 
particular  crime  became  prevalent  or  annoying  to 
society,  a  penalty  was  offset  against  it,  in  the  hope, 
which  has  proved  vain,  of  preventing  its  commis- 
sion through  fear  of  the  penalty.  Criminal  codes 
as  they  exist  are,  in  the  light  of  twentieth-century 
intelligence,  a  conglomeration  of  penalties  of  va- 
rious degrees  of  atrocity,  irrationality,  absurdity, 
and  inutility.  They  are  the  relics  of  blind  social 
struggles  against  social  evils,  useful  chiefly  as 


The  Science  of  Penology  Defined 


antiquities,  to  be  collected  with  thumb-screws,  iron 
boots,  racks,  and  torture  wheels  in  museums.  To 
provide  an  efficient  substitute  for  these  codes,  to 
enunciate  the  principles  upon  which  a  successful 
defense  of  society  against  crime  must  be  conducted 
and  the  abolition  of  criminality  accomplished,  is 
the  special  province  and  object  of  Penology. 

Its  importance  is  subjectively  very  great  be- 
cause the  criminal  class  terrorizes  and  preys  upon 
society  universally,  and  imposes  on  it  a  tax  for 
protection  enormously  disproportionate  to  its  num- 
bers ;  although  objectively  the  class  constitutes  an 
insignificant  part  of  the  social  whole.  According 
to  the  United  States  census  of  1890,  there  were 
then  thirteen  hundredths  of  one  per  cent,  of  the 
population  confined  in  reformatories,  jails,  and 
penitentiaries.  If,  as  is  assumed  by  sociolo- 
gists, only  one  of  ten  of  the  criminal  class  is  under 
confinement  at  any  one  time,  the  whole  criminal 
class  averaged  but  one  and  three  tenths  per  cent, 
of  the  population  in  1890,  or  13,170  persons  in 
the  million.  Of  the  47,413,559  people  ten  years 
of  age  and  over,  there  were  two  hundred  and  five 
thousandths  per  cent,  in  confinement ;  which  would 
make  the  criminal  class  a  somewhat  larger  propor- 
tion of  that  part  of  the  population  from  which  it  was 
entirely  derived,  or  nearly  one  and  three  quarters 
per  cent.  The  number  of  male  convicts  was  thirty- 
one  hundredths  per  cent,  of  the  male  population 
ten  years  old  and  over ;  which  would,  upon  this 
assumption,  imply  a  criminal  class  amounting  to 


8  The  Science  of  Penology 

three  and  one  tenth  per  cent,  of  the  males  of  that 
age. 

Although  no  general  census  of  the  criminal  class 
has  ever  been  attempted,  and  from  the  nature  of 
the  case  is  quite  impossible,  we  have  some  sta- 
tistics which  are  a  basis  for  calculation,  and  which 
support  the  assumption  o'f  the  criminologists  that 
only  one  in  ten  of  the  class  is  in  confinement  at  any 
one  time.  The  untried  prisoners  held  in  confine- 
ment on  the  3Oth  of  September,  1897,  in  the  State 
of  Pennsylvania  numbered  3210;  there  were 
committed  during  the  year  69,517;  a  total  of 
72,727:  of  these  5824  were  convicted  during  the 
year.  Thus  eight  per  cent,  of  the  persons  tried 
for  crime  in  that  State  from  September  30,  1897, 
to  September  30,  1898,  became  convicts. 

In  Massachusetts  the  arrests  during  1898  num- 
bered 99,336.  The  convicts  in  confinement  Sep- 
tember 30,  1899,  were  6765,  or  six  and  eighty-one 
hundredths  per  cent,  of  arrests.1  Of  the  424,410  per- 
sons estimated  to  be  arrested  for  other  crimes  than 
drunkenness  and  prostitution  in  the  United  States 
during  1899,  44,897  were  convicted  ;  somewhat  over 
ten  per  cent.2  Of  course  many  of  these  arrests  were 
of  the  same  individuals,  and  some  of  them,  doubtless, 
of  innocent  persons,  but  it  is  unlikely  that  any  one 
was  arrested  unless  a  crime  of  which  he  was  accused 
had  been  committed  by  some  one,  so  that  each  ar- 
rest of  a  different  person  represented  a  criminal  at 
the  time,  whether  the  right  one  was  arrested  or  not. 

1  Massachusetts  Prison  Association  Bulletin  No.  12.  *  Appendix  A. 


The  Science  of  Penology  Defined 


It  is  a  common  observation,  also,  that  many  crimes 
are  committed  for  which  no  arrests  are  made,  which 
must  be  charged  against  the  criminals  at  large. 
Besides  the  crimes  which  are  publicly  known,  there 
is  a  large  number  of  secret,  hidden,  and  undetected 
crimes,  which  remain  unknown  to  the  public  :  such 
as  small  thefts,  misdemeanors,  sexual  crimes,  viola- 
tions of  license  laws,  drunkenness,  gambling,  frauds 
of  all  kinds,  cheating  in  trade,  bribery,  perjury,  and 
political  corruption.  The  existence  of  these  is  no- 
torious, but  for  various  reasons  they  cannot  be 
legally  proved,  or  are,  at  least,  not  attended  by 
arrest  and  conviction.  Statistics  of  arrests  and  con- 
victions are  the  legal  evidence  which  appear  on  the 
surface, —  the  scum  arising  from  the  continual  fer- 
ment going  on  in  the  social  sediment. 

The  number  of  criminals  in  confinement,  more- 
over, causes  no  apparent  reduction  in  the  number  of 
crimes  committed,  and  affords  no  sensible  relief 
to  society.  The  assumption,  then,  that  the  crim- 
inal class  is  at  least  ten  times  larger  than  the  num- 
ber of  convicts  confined  at  any  one  time  seems 
rational,  and  warranted  by  the  known  facts.  More 
than  ninety-two  (92.23)  per  cent,  of  this  class  are, 
however,  males,1  and  a  large  majority  of  them  in  the 
full  vigor  of  manhood  ;  which  accounts  for  some 
part  of  their  excessive  damage  to  society.  "  In 
New  York  seventy  per  cent,  of  adult  felon  prisoners 
were,  when  convicted,  under  thirty  years  of  age."2 

1  United  States  Census,  1890. 

8  Z.   R.  Brockway,  Annals  National  Prison  Association,   1898,  p.   19. 


io  The  Science  of  Penology 


The  reported  State  and  county  costs  of  the  arrest, 
trial,  and  maintenance  of  persons  accused  of  crime 
in  one  interior  county  of  Pennsylvania,  where  the 
writer  was  able  to  make  a  careful  examination  into 
items,  amounted,  in  1899,  to  $135>822.i7  !  The 
number  of  persons  convicted  was  154.  The  cost  of 
crime,  therefore,  in  that  county  averaged  $881.96 
per  convict.  If  we  add  the  cost  of  police  in  the 
cities  of  that  county  ($57,760),  it  would  be  $1259 
per  convict. 

The  Massachusetts  Prison  Association  states  in 
Report  No.  12,  for  1899,  that  the  number  of  prison- 
ers in  confinement  on  the  3Oth  day  of  September, 
1899,  in  that  State  was  6765,  and  that  the  cost  of 
crime  paid  by  State,  county,  and  city  taxation  dur- 
ing 1898  was  $4,737,678,  which  is  an  average  of 
$700.33  per  convict.  The  number  of  arrests  was 
about  100,000  and  the  cost  of  each,  therefore, 
averaged  nearly  $50.  The  number  of  commit- 
ments, 29,796,  used  as  a  divisor,  makes  a  cost  of 
$162.25  each.  Deducting  16,1 14  commitments  for 
non-payment  of  fines,  the  average  expenditure  for 
13,672  convictions  was  $346.57  each.  If  we  con- 
sider the  additional  cost  of  the  private  watchmen, 
fees  of  constables,  justices  of  the  peace,  and  alder- 
men, the  loss  of  time  of  witnesses  and  jurors,  the 
fees  of  lawyers,  and  other  costs  not  defrayed  by 
taxation  the  average  would  probably  exceed  $  1 500 
per  convict  throughout  the  United  States.  At  this 
average  the  cost  of  the  criminal  class  to  the  people 
of  the  United  States,  based  upon  the  number  of 


The  Science  of  Penology  Defined       1 1 


convicts  in  reformatories,  jails,  and  penitentiaries  by 
the  census  of  1890,  amounted  then  to  the  prodi- 
gious sum  of  $123,493,50x3  per  annum.  This  sum  is 
more  than  a  third  of  the  cost  of  the  United  States 
Government  at  that  time,  including  pensions.  To 
this  must  be  added  the  value  of  what  is  stolen  by 
criminals,  the  losses  by  felonies,  arson,  and  mali- 
cious destruction  of  property,  the  cost  of  the  militia, 
the  ordinary  defense  of  property  and  persons,  the 
services  of  executive,  judicial,  and  legislative  officials, 
and  the  restriction  of  profits  in  business.  Some 
writers  estimate  an  average  cost  of  at  least  $3000 
per  convict.  Dr.  Eugene  Smith,  a  distinguished 
lawyer  and  penologist  of  New  York,  and  for  many 
years  an  officer  of  the  National  Prison  Association, 
in  a  very  exhaustive  and  conservative  paper  on 
"  The  Cost  of  Crime,"  read  before  the  congress  of 
the  Association  in  September,  1900,  deduced  from 
his  examination  into  the  costs  of  crime  defrayed  by 
taxation  in  the  State  of  New  York,  an  estimated 
direct  cost  in  the  United  States  of  $200,000,000 
annually.  The  indirect,  concomitant,  consequen- 
tial damages  and  burden  laid  by  it  upon  the  people 
of  the  United  States  in  1900  he  estimated  at  $400,- 
000,000,  making  the  total  present  money  burden  of 
crime  in  this  country  the  enormous  sum  of  $600,- 
000,000  a  year.1 

Seldom  a  year  passes  in  which  taxpayers  do  not 
expend  $100,000,  and  sometimes  several  hundred 
thousand  dollars,  to  convict  a  single  criminal.  The 

1  Report  of  National  Prison  Association,  1900. 


12  The  Science  of  Penology 


Chicago  Tribune  sums  up  a  total  of  reported  embez- 
zlements, forgeries,  defaults,  and  bank  wreckage  for 
the  year  1899  of  $8,622,056.  It  is  a  debatable 
question  whether  the  existing  methods  for  the  de- 
fense of  society  against  the  criminal  class  do  not 
cost  it  more,  amounting  as  they  do  by  Dr.  Eugene 
Smith's  estimate  to  nearly  eight  dollars  a  head  for 
every  man,  woman,  and  child  in  the  land,  than 
would  the  entire  abolition  of  the  penal  codes,  and 
the  complete  liberty  of  the  criminal  class. 

It  is  a  reproach  to  the  intelligence  of  the  age  that 
it  has  made  no  efficient,  systematic  effort  to  correct 
this  great  evil ;  that  it  continues  contentedly 
skimming  the  surface  instead  of  checking  the  fer- 
mentation. The  widely  published  history  of  the  ex- 
perience of  the  past  in  dealing  with  crime  ;  the 
searching  investigations  of  scientists  into  the  physi- 
cal and  psychical  conditions  of  the  criminal;  the  dis- 
cussions and  rational  conclusions  of  penologists,  now 
indicate  unmistakably  and  plainly  the  principles  and 
system  upon  which  a  successful  and  economical 
treatment  of  the  criminal  class  must  be  based. 

In  our  system  of  self-government,  where  the  will 
of  the  majority  rules  and  enacts  laws,  popular  in- 
struction and  agitation  are  the  essential  elements  of 
all  legislative  and  social  reforms.  The  will  of  the 
majority  not  only  enacts  the  laws  which  define  crimes 
and  prescribes  the  treatment  of  criminals,  but  estab- 
lishes the  plane  and  exhibits  the  state  of  morals  in 
the  community  for  the  time.  The  enacted  law  does 
not  make,  so  much  as  it  marks,  human  progress.  It 


The  Science  of  Penology  Defined       13 


has  become  necessary  for  the  American  people  to 
require  now  of  their  legislators  such  a  revision  and 
reconstruction  of  our  penal  codes  as  will  fix  and  es- 
tablish their  basis  upon  the  scientific  data  of  the 
twentieth  century.  The  reason  why  this  demand 
has  not  yet  been  made  effective  is  doubtless  the  lack 
of  popular  comprehension  of  its  great  importance, 
and  of  the  practical  remedies  which  the  specialists 
have  discovered  ;  due  to  the  fact  that  they  have  not 
heretofore  been  separated  from  confusing  associa- 
tions, or  systematized  by  themselves. 

The  science  of  Penology,  specialized  to  remedy 
this,  is  naturally  divided  into  three  departments 
or  sections :  Diagnostics,  Therapeutics,  and  Hy- 
gienics. In  the  first  section  the  science  itself  is 
explained  ;  crime  defined  ;  the  criminal  class  identi- 
fied ;  the  several  categories  or  species  of  criminals 
designated  ;  the  methods  of  detection,  identification, 
and  first  treatment  of  individuals  specified  ;  and  the 
social  conditions  which  conduce  to  criminality  dis- 
closed. Therapeutics  is  that  section  of  the  science 
which  relates  to  the  defense  of  society  against  the 
criminal  class ;  it  states  the  principles  which  regu- 
late its  repression,  and  formulates  the  laws  governing 
the  treatment  and  cure  of  criminals;  fixes  the  dispo- 
sition which  is  to  be  made  of  convicts  according  to 
their  character;  and  specifies  the  remedies  applicable 
to  different  phases  of  criminality.  Lastly,  in  the 
department  of  Hygienics,  the  sources,  origin,  and 
causes  of  crime  and  criminality  are  designated  ;  and 
the  measures  specified  which  are  necessary  for  the 


H  The  Science  of  Penology 

restriction  and  final  extermination  of  the  criminal 
class  from  society.  The  prophylactics  of  Penology 
constitute  the  most  important  and  fruitful  branch 
of  the  subject  in  its  general  sociological  relations, 
and  it  has  consequently  been  more  directly  con- 
nected hitherto  with  the  science  of  sociology.  It 
is,  however,  manifestly  improper  to  confine  the  op- 
erations of  a  special  science,  which  must  be  com- 
plete in  itself,  to  the  results  of  recognized  tendencies, 
disregarding  their  origin,  propagation,  and  culture. 
Crime  cannot  be  prevented  or  criminality  elimi- 
nated from  the  social  organism  by  waiting  to  cut 
off  the  criminal  after  the  crime  has  been  committed. 
The  possible  criminal  must  be  caught  and  rendered 
harmless  before  he  can  act ;  the  constant  reinforce- 
ment and  recruiting  of  the  criminal  class  must  be 
checked  at  its  source.  The  supreme  object  of  Pe- 
nology is  to  prevent  crime,  not  to  punish  for  it.  It 
is  similar  to  the  science  of  medicine  and  surgery  in 
that  its  province  is  not  only  to  cure  specific  cases  of 
disease,  but  also  to  prevent  the  genesis,  recurrence, 
and  spread  of  disease.  The  disease  of  criminality 
must  be  abstractly  investigated,  treated,  and  con- 
trolled by  measures  of  the  same  kind  as  those  which 
have  dealt  successfully  with  the  other  great  maladies 
afflicting  humanity.  It  will  be  subdued  if  at  all,  and 
so  far  as  is  possible,  just  as  smallpox,  cholera,  yellow 
and  typhoid  fevers,  diphtheria,  and  tuberculosis,  those 
once  incurable  and  terrible  diseases,  have  been — by 
scientific  investigation  and  the  discovery  and  ap- 
plication of  appropriate  remedies  and  prophylactics. 


CHAPTER  II. 

THE    CRIMINAL  CLASS. 

The  Law  of  Criminal  Saturation — Decrease  of  Crime  during  Historical 
Period — Who  Compose  the  Class — Present  Constancy  of  its  Numbers — 
Variation  in  its  Numbers  on  Account  of  Variation  in  Laws — Necessity 
of  Comprehensive  Treatment — The  Five  Categories — Their  Character- 
istics— General  Appearance  and  Characteristics  of  this  Class — Pre- 
sumptive Criminals — Subdivisions  Pathological — Sources  and  General 
Causes — Nature  of  the  Disease  and  Sanitary  Measures. 

IT  has  been  impossible  to  determine  from  avail- 
able statistics  either  the  exact  proportion  of  the 
criminal  class  in  any  community,  or  whether  crime 
is  increasing  or  decreasing  under  present  condi- 
tions.1 But  the  investigations  of  students  establish 
the  existence  of  a  constant  class  disposed  to  crime 
in  all  civilized  lands  ;  varying  in  numbers  according 
to  different  physical  conditions  and  social  environ- 
ment, the  prevalence  of  hereditary  tendencies,  and 
susceptibility  to  occasional  impulses,  in  obedience  to 
a  law  which  Prof.  Ferri  in  his  Criminal  Sociology 
calls,  in  analogy  with  chemical  phenomena,  the 
"  Law  of  Criminal  Saturation "  ;  that  is,  society 
under  similar  conditions  has  always  a  certain  pro- 
portion of  identified  and  possible  criminals.  In 

1  The  Criminal,  Drahms,  p.  265  ;  "  Is  Crime  Increasing  ?  "   Prof.  Falkner, 
The  Forum,  July,   1900. 

15 


1 6  The  Science  of  Penology 


accordance  with  the  same  law,  it  has  a  certain  pro- 
portion of  insane,  blind,  deaf,  epileptics,  drunkards, 
cripples,  feeble-minded,  invalids,  sick,  as  well  as 
healthy,  strong,  and  extraordinarily  capable  mem- 
bers. The  former  are  the  effete  residuum,  the 
social  culls  of  human  progress. 

The  original  barbaric  man  knew  and  obeyed  no 
law  save  the  instincts  of  his  own  uncontrolled 
desires.  His  whole  nature  was  what  we  now  call 
egoistic,  and  in  essence  criminal.  As  there  was  no 
law  he  could  not  be  fairly  termed  what  we  now  call 
criminal,  but  whatever  law  crossed  his  will  he  broke 
for  that  bare  reason  alone,  if  for  no  other.  The 
whole  human  family  were  once  as  lawless  as  tigers. 
We  now  consider  "  lawless  "  and  "  criminal "  to  be 
synonymous  terms.  According  to  our  present  con- 
ception and  understanding,  all  mankind  was  once 
of  the  criminal  nature  and  class.  Savage  races 
even  now  have  slight,  if  any,  consciousness  of  right 
or  wrong.  We  may  assume,  then,  as  we  have  shown 
that  the  criminal  class  does  not  exceed  two  per 
cent,  of  the  people,  that  civilization  and  religion 
have  in  their  highest  development  successfully  over- 
come ninety-eight  per  cent,  of  the  natural  criminal 
depravity  of  mankind  and  reduced  it  to  a  small  and 
controllable  number.  This  is  a  very  decided  de- 
crease within  the  historical  period. 

The  criminal  class,  however,  is  not  differentiated 
from  the  other  social  elements  so  as  to  be  readily 
distinguished,  as  are  the  other  classes  which  have 
been  mentioned.  It  consists  of  individuals  in  every 


The  Criminal  Class  17 


rank  of  society,  with  corresponding  variations  and 
grades  of  character,  intelligence,  education,  morals, 
habits,  mental  and  physical  endowments.  The 
comprehensive  anthropological  and  psychological 
examinations  made  by  skilled  scientists  have  so 
far  failed  to  establish  any  invariable  diagnosis  of 
criminality  previous  to  the  overt  crime.  They  have 
demonstrated  that  a  large  proportion  of  criminals 
possess  certain  peculiar  physical,  mental,  and  moral 
characteristics ;  but  not  that  all  possessing  such 
characteristics  are  criminals.  It  has  been  found, 
besides,  that  not  even  all  of  those  who  have 
been  convicted  of  crime  belong  to  the  criminal 
class. 

What,  then,  is  the  criminal  class  in  society  ?  It  is 
absolutely  necessary  for  scientific  discussion  that  we 
should  have  an  accurate  and  comprehensive  defi- 
nition of  what  is  meant  by  this  term.  We  may  say, 
generally,  that  the  criminal  class  is  composed  of  all 
those  members  of  society  whose  dispositions  and 
acts  are  hostile  to  its  welfare,  to  its  order,  to  its  laws 
and  customs,  and  to  the  rights  of  its  members.  It 
includes  those  who  have  been  convicted  of  crime  ; 
those  who  have  committed  crime  and  escaped  de- 
tection or  conviction  ;  those  in  whom  the  disposi- 
tion to  crime  exists  ;  and  all  youths  or  children 
whose  heredity  or  environment  predisposes  them  to 
become  criminals.  Specifically,  it  consists  of  all 
those  who  from  physical  deformity,  mental  in- 
capacity, or  moral  depravity  are  either  unable  or 
indisposed  to  regulate  their  lives  in  conformity 


1 8  The  Science  of  Penology 

with  the  laws  which  have  been  enacted  for  the  wel- 
fare of  the  community  in  which  they  dwell. 

We  define  crime  as  an  act  punishable  by  law. 
Therefore,  as  laws  differ  in  different  social  organi- 
zations and  change  in  the  same  nation  from  time  to 
time,  there  is  produced  a  material  variation  in  the 
statistical  proportion  of  the  criminal  class  by  the 
very  laws  themselves,  quite  independently  of  indi- 
vidual character.  Much  of  the  confusion  and  ap- 
parent contradiction  of  criminal  statistics  is  due  to 
neglect  of  the  proper  consideration  of  contempo- 
rary laws.1  Other  variations  in  the  prevalence  of 
crime  and  the  proportionate  number  of  criminals 
are  to  be  attributed  to  differing  degrees  of  vigilance 
and  efficiency  on  the  part  of  officers  in  the  detec- 
tion and  arrest  of  offenders,  and  to  changes  in  the 
pressure  of  want  and  necessity  upon  the  social 
body.  Short  crops,  hard  times,  and  lack  of  em- 
ployment, force  some  over  the  line  of  honest  live- 
lihood temporarily,  while  prosperity,  with  full 
employment,  attracts  back  again  the  moral  weak- 
ling. All  the  information  which  has  been  collected 
confirms  the  generally  accepted  belief  that  the 
criminal  class  in  society  has  continued  without  sub- 
stantial diminution  for  many  years.  It  has  effectu- 
ally resisted,  of  late,  all  the  effort  which  has  been 
made  for  its  control,  and  reduction  in  numbers  ex- 
cept possibly  in  Great  Britain,  where  the  records 
show  recently  a  reduction  in  convictions  for  crimes. 
The  prevalence  of  crime  has  varied  with  the 

1  See  Practical  Sociology,  Wright,  p.  356. 


The  Criminal  Class  19 


changes  of  laws  without  any  apparent  difference  in 
the  proportion  of  criminals  in  society. 

The  social  organization,  then,  is  grievously  af- 
flicted with  a  malady  which  objectively  affects  less 
than  two  per  cent,  of  its  members  ;  a  proportion 
which  remains  substantially  constant,  and  has  suc- 
cessfully resisted  the  most  strenuous  efforts  for  its 
restriction.  An  unscientific  and  impotent  contest 
with  the  malady  imposes  upon  society  one  of  the 
heaviest  burdens  of  taxation.  The  importance  of 
an  intelligent  and  exhaustive  study  of  that  small 
class  wherein  this  affliction  originates  is  manifest. 
It  has  been  undertaken  and  patiently  pursued  by 
capable  and  learned  men  abroad  and  at  home. 
Much  knowledge  has  been  acquired  and  various 
theories  evolved  connected  with  the  criminal  and 
criminality  which  it  is  unnecessary  to  consider  in 
this  connection  ;  but  one  general  conclusion  is  de- 
rived from  these  investigations  which  may  be 
termed  axiomatic  :  it  is  the  absolute  necessity  of 
a  comprehensive  treatment  of  the  whole  body  of 
criminally  diseased  as  a  class  ;  just  as  society  deals 
with  the  insane,  or  the  deaf,  blind,  or  any  other 
particular  class  of  its  components.  Criminality 
cannot  be  suppressed  or  restricted  by  neglecting 
action  until  the  crime  is  committed,  any  better  than 
cholera,  smallpox,  or  typhoid  can  be  by  inatten- 
tion until  it  is  necessary  to  call  the  doctor.  It 
is  a  penological  law  that  pernicious  heredity  must 
be  checked,  corrupting  environment  corrected,  so- 
cial sustenance  protected  from  infection  with  the 


20  The  Science  of  Penology 


t 

microbes  of  crime,  the  malaria-breeding  Anopheles 

of  riotous  desire  discovered,  and  the  whole  social 
system  inoculated  with  the  *  anti-toxic  serum  of 
moral  culture  in  order  to  become  immune. 

The  scope  of  penal  legislation,  to  be  rational  and 
effective,  must  comprehend  the  whole  criminal  class  ; 
its  origin;  its  constituents,  its  atiology,  and  its 
therapeutics. 

The  detected-criminal  class  has  been  divided  by 
Dr.  Drahms  in  the  latest  and  most  exhaustive  trea- 
tise upon  the  criminal  into  three  categories1:  i.  The 
Instinctive  Criminal.  2.  The  Habitual  Criminal. 
3.  The  Single  Offender.  This  division  is,  he  says, 
"  all-sufficient  for  all  practical  and  scientific  ends,  as 
it  ostensibly  combines  more  harmoniously  both  the 
genetic  and  concrete  descriptions  of  the  true  crim- 
inalistic  concepts  without  the  continuous  overlap- 
ping so  characteristic  of  the  ultra  refinements  of 
the  schools,  that  serve  only  to  confuse  the  subject." 

Penology  has  to  deal  with  these  three  categories 
of  criminals,  and  a  much  larger  and  more  dangerous 
one,  which  we  will  designate  as  that  of  "  Presump- 
tive Criminals."  This  last  category  is  constituted 
of  that  part  of  the  class  which  is  at  large  in  society, 
the  undetected,  and  those  who  are  too  young 
for  conviction,  but  are  the  victims  of  a  bad  heredity 
or  environment  which  will  certainly  in  the  process 
of  time,  if  not  corrected,  develop  into  criminality. 
Accurately  speaking,  of  course,  the  "  Presumptive 
Criminal"  is  not  a  criminal,  as  he  is  not  under 

1  The  Criminal,  p.  56. 


The  Criminal  Class  21 


conviction  of  law-breaking.  Upon  his  first  con- 
viction he  will  naturally  fall  into  the  category  of 
"  Instinctive  Criminals,"  because  of  his  nature  and 
disposition ;  but  he  is  not  included  in  this  category 
until  then,  although  he  must  be  comprehended  in 
the  general  class  with  which  penal  legislation  deals, 
and  to  which  he  makes  a  very  important  numerical 
and  genetic  addition. 

"  Criminal  Madmen  "  is  Prof.  Ferri's  first  cate- 
gory of  this  class  ;  which  is  rejected  by  Dr.  Drahms 
as  a  proper  subdivision  upon  ethical  grounds,  be- 
cause the  fact  of  insanity  relieves  the  transgressor 
from  the  guilt  of  criminality  for  his  act.  If  he  is  a 
madman  he  cannot  be  classed  as  a  criminal,  he 
claims,  but  must  belong  to  the  insane  class.  But 
"  Criminal  Madmen "  are  nevertheless  included 
among  the  reported  number  of  convicts  in  confine- 
ment, which  is  the  basis  of  calculation  concerning 
the  proportions  of  the  criminal  class ;  and  they 
should  therefore  be  accounted  for  separately  and 
dealt  with  specially.  Some  of  this  category  are  in 
detention,  having  escaped  sentence  on  account  of 
insanity  ;  others  are  convicted  criminals  who  have 
become  insane  in  prison.  None  of  them  can  be 
properly  assigned  to  any  other  category.  They 
must  be  recognized  as  a  special  division.  True 
science  must  give  preference  to  facts  over  theories. 
A  categorical  analysis  of  the  entire  criminal  class 
must  therefore  include  both  "  Criminal  Mad- 
men "  and  "  Presumptive  Criminals."  Accepting 
Dr.  Drahms'  nomenclature  and  subdivision  as 


22  The  Science  of  Penology 


preferable  for  diagnosis  and  correct  as  far  as  it  goes, 
we  find  the  social  element  of  criminals  composed 
of  five  categories  in  about  these  proportions : 

I.  Criminal  Madmen  5  to  10  per  cent.  (Prof.  Ferri.) 

TT    ,      .       .       „  .    .     .     ^j  40  to  50  per  cent.;  being  com- 
II.  Instinctive  Criminals     1 


,      posed  of  Prof.  Fern  s     Born 

III.  Habitual  Criminals  ,  u  TT  .  .   ,. 

J       and     Habit     categories. 

IV.  Single  Offenders  All  other  convicts. 
V.  Presumptive  Criminals. 

Dr.  Drahms  has  so  philosophically  described  the 
second,  third,  and  fourth  of  these  categories  in  their 
psychological,  physiological,  hereditary,  and  envi- 
ronmental aspects,  with  full  quotations  and  refer- 
ences to  all  the  prominent  authorities,  in  his 
profound  study,  The  Criminal,  published  in  1900, 
that  it  is  unnecessary  to  add  anything  more  than 
a  reference  to  his  great  work  in  explanation  of 
their  origin  and  character.  The  Instinctive  and 
Habitual  Criminals  are  proved  to  be  criminals  by 
nature  ;  they  are  victims  of  a  depraved  or  a  cor- 
rupting early  environment  or  defective  heredity. 
A  very  large  proportion  of  general  insanity  is 
traced  to  the  same  source.  Science  therefore  es- 
tablishes bad  heredity  and  environment  as  the  al- 
most exclusive  origin  of  this  half  of  criminal 
humanity. 

"  Single  Offenders,"  who  constitute  the  remainder 
of  the  detected  class,  are  less  distinctively  marked 
by  a  depraved  nature  ;  but  they  are,  notwithstand- 
ing this,  no  less  certainly  differentiated  from  the 


The  Criminal  Class  23 


standard  character  of  honest  self-control  by  their 
very  yielding  to  the  criminal  impulse.  Honest 
morality  is  maintained  in  the  individual  by  the 
dominance  of  the  altruistic  elements  of  character 
over  the  egoistic.  That  enfeeblement  or  deficiency 
of  self-control  which  allows  even  a  single  criminal 
transgression  is  an  indication,  or  demonstration 
rather,  that  the  transgressor  is  abnormal,  deficient 
in  some  essential  quality  of  honest  manhood. 
Lombroso  says  (and  Ferri,  Benedikt,  and  Drahms 
corroborate  him)  : 

"  There  is,  properly  speaking,  no  such  thing  as  an  '  occa- 
sional criminal,'  in  the  sense  of  a  normal  individual  casually 
launched  into  crime.  .  .  .  An  isolated  act,  whatever  its  na- 
ture, though  apparently  standing  isolated  and  without  apparent 
provocation  or  psychological  antecedent,  may  nevertheless  be 
associated  with  a  line  of  predisposing  causes  of  which  this 
single  overt  act  is  but  the  climax  :  it  may  be  traced  to  ante- 
natal or  otherwise  criminalistic  causal  relations  as  clearly  de- 
fined as  in  previously  cited  distinctively  criminal  cases."  J 

The  "  Single  Offender "  then  is  also  a  moral 
defective,  either  by  nature  or  education.  Investi- 
gation by  scientific  analysis  substantiates  the  con- 
clusion of  common  sense  that  the  criminal  class  as 
a  whole  is  the  result  of  tainted  heritage  or  faulty 
development. 

Although  the  immense  amount  of  scientific  ex- 
amination which  has  been  expended  upon  the  crim- 
inal by  learned  penologists  has  failed  to  discover 
any  universal  physiological  signs  by  which  he  may 

1  The  Criminal,  pp.  197,  198. 


24  The  Science  of  Penology 

be  identified  without  the  criminal  act,  or  to 
establish  the  existence  of  any  distinct  type  of  crim- 
inal humanity  ;  yet,  when  viewed  in  large  masses, 
such  as  are  to  be  seen  in  all  great  prisons,  criminals 
impress  by  their  general  appearance  even  the 
casual  beholder  with  the  conviction  that  they  all 
have  a  general  resemblance  and  are  different  from 
and  inferior  in  physique  and  expression  to  the  mass 
of  mankind.  The  possible  variations  are  so  many, 
so  diversified,  often  so  minute,  that  neither  singly 
nor  in  association  can  they  be  denominated  as 
invariable  brands  of  criminality,  or  be  made  to  dis- 
tinguish the  criminal  from  the  normal  man  ;  but 
all  criminals  have  some  of  them.  They  are  either 
physically  deformed,  defective,  undeveloped,  psy- 
chically warped  and  depraved,  or  all  these  united. 
Moral  depravity  is  the  only  universal  characteristic 
of  the  criminal  class.  Its  impress  upon  the 
physique,  the  physiognomy,  and  demeanor  of  in- 
dividuals is  the  only  reliable  indication  of  mem- 
bership, except  the  actual  crime.  Moral  depravity 
is  the  sum  and  substance  of  criminality,  the  fruit- 
ful womb  of  the  criminal  class.  The  sterilization  of 
this  fountainhead  of  crime  must  be  the  chief  and 
ultimate  object  of  all  penal  codes.  Of  10,000  con- 
victs examined  by  Mr.  Brockway  at  Elmira,  he 
states  that  28.8  per  cent,  were  "non-moral,  having 
no  vestige  of  the  sense  of  pity  or  probity  ;  43.  i 
per  cent,  were  immoral  below  the  average  of  safe 
inhabitancy;  22.6  per  cent,  normal,  as  usual;  5.5 
per  cent,  supersensitive  or  abnormal."  Science 


The  Criminal  Class  25 


then  settles  on  this  theorem  as  the  fundamental 
principle  of  penal  legislation  : 

Criminal  codes  must  be  designed  to  reform  the 
moral  depravity  of  culprits. 

"  Presumptive  Criminals  "  constitute  the  stream 
of  supply  which  maintains  the  statistical  level  of 
the  criminal  class  under  full  head  against  the  draft 
of  codes  and  prisons.  This  stream  nullifies  and 
overwhelms  all  the  social  effort  which  has  been 
made  for  its  restriction  and  reduction  hitherto  at  the 
flood  of  its  tide.  The  manifest  futility  of  these 
efforts  has  directed  the  attention  of  science  to 
measures  for  its  control  and  diversion  into  innocu- 
ous or  beneficent  channels  at  its  sources,  in  its 
ductile  and  manageable  stage.  This  category  is 
largely  composed  of  the  offspring  of  criminals  and 
depraved  parents :  defective,  orphaned,  illegiti- 
mate, abandoned,  neglected,  and  incorrigible  chil- 
dren, the  progeny  of  debased  poverty  enveloped  in 
an  environment  of  corruption ;  together  with 
juvenile  offenders  whose  age  prevents  their  con- 
viction and  imprisonment.  It  is  evident  that  there 
can  be  no  substantial  diminution  of  the  class  until 
all  these  are  turned  from  their  evil  ways.  Many 
of  them  have  inherited  the  criminal  taint ;  the  rest 
are  becoming  saturated  with  it  from  their  sur- 
roundings. Their  environment  arrests  the  devel- 
opment of  the  altruistic  moral  faculties,  and 
stimulates  into  abnormal  growth  the  selfish  im- 
moral instincts.  As  the  progress  of  civilization 
and  the  condensation  of  population  is  largely 


26  The  Science  of  Penology 


responsible  for  this  product,  and  society  must  suffer 
for  it  and  bear  the  burden  of  its  refined  criminal- 
ity, it  is  incumbent  upon  society  to  assume  its 
care  in  the  plastic  age  and  exert  itself  to  train  it 
up  into  good  citizenship.  It  is  an  edict  of  our 
science, 

That  society  trnist  assume  parental  functions  over 
all  children  lacking  proper  parental  training,  un- 
less it  can  compel  the  parents  to  perform  their  duty. 

The  disease  of  criminality  has  one  absolutely  un- 
failing, positive  symptom,  which  is  crime.  A  per- 
son may  be  afflicted  with  the  disease  before  it  has 
been  detected,  but  when  this  symptom  has  been 
discovered  it  is  positive  evidence  of  the  presence  of 
the  disease ;  and  the  patient  must  be  at  once  com- 
mitted to  the  care  and  treatment  of  skilled  doctors. 
Unless  this  is  done  the  disease  will  in  almost  every 
case  progress  in  virulence,  or  become  chronic  and 
incurable.  The  earlier  in  life  the  criminally  dis- 
eased can  be  subjected  to  proper  curative  treat- 
ment, the  better  will  be  the  prospect  of  cure.  The 
subdivision  of  the  criminal  class  which  has 
been  given  is  pathological.  The  categories  are 
distinguished  from  one  another  by  the  variety  of 
the  disease  displayed  by  the  individual,  in  order 
that  therapeutic  measures  may  be  adapted  to  the 
special  requirement  of  each  subdivision  ;  just  as  in- 
sanity is  subdivided  by  its  different  manifestations 
into  the  categories  of  mania,  monomania,  de- 
mentia, paresis,  paranoia,  etc. 

To    a    depraved    constitution     inherited    from 


The  Criminal  Class  27 


depraved  parents,  called  Heredity,  and  a  birth  and 
growth  in  the  midst  of  evil  and  corrupting  sur- 
roundings, called  Environment,  are  attributed  about 
half  the  criminal  class.  Drunkenness,  prostitution, 
the  neglect  of  parental  training  of  children,  parental 
abandonment,  orphanage,  the  immigration  of  the 
depraved  from  other  lands,  constitutional  deteriora- 
tion by  luxurious  and  vicious  living,  ignorance,  a 
partial  education,  irreligion,  incompetence  for,  or 
an  aversion  to,  continuous  work,  social  conditions 
producing  a  superstimulated  desire  for  indulgences 
honestly  unattainable,  ungoverned  passions,  and 
perhaps  the  popular  American  sentiment  of  free- 
dom and  independence  encouraging  an  inordinate 
egoism,  selfish  importance,  and  defiance  of  re- 
straint— these  are  the  principal  social  sources  and 
causes  of  criminality  in  our  country. 

The  disease  of  criminality  is  diagnosed  in  the 
abstract  as  the  domination  of  inordinate  egoism  or 
selfishness  over  a  character  having  inferior  or  en- 
feebled altruism,  ethical  consciousness,  intelligence, 
and  energy.  The  cure  will  depend  upon  the  suc- 
cess of  intelligent  effort  to  develop,  make  healthy 
and  strong  the  physical,  the  altruistic,  and  the 
moral  nature  ;  and  to  establish  the  control  of  the 
latter  over  character.  It  is  necessary  to  detect  and 
place  in  hospitals  every  infected  individual  in  the 
social  organism  before  his  criminality  becomes 
chronic,  not  only  in  order  to  restrict  the  continuous 
contribution  of  Heredity  and  Environment  to  the 
class,  but  to  prevent  contagion,  and  ravage.  This 


28  The  Science  of  Penology 


duty  devolves  naturally  upon  magistrates,  the  police, 
philanthropists,  and  ministers,  whose  duties  bring 
them  into  contact  and  close  relation  with  all  the 
people.  Homeless,  neglected,  and  delinquent 
children,  idle  and  ungoverned  youths,  and  juvenile 
offenders  must  be  rescued  from  their  pernicious 
environment  and  subjected  to  a  general  hygienic 
treatment ;  the  children  trained  in  country  family 
kindergarten  cottages  until  they  can  be  placed  out 
by  child-saving  societies  in  families ;  and  the  youth 
in  industrial  schools,  where  the  more  vicious  can 
be  separated  from  others,  and  their  corrupting  in- 
fluences restricted.  These  are  the  primary  depart- 
ments of  criminal  reformation.  The  earlier  the 
depraved  or  defective  patient  can  be  placed  in  them 
the  greater  will  be  the  chance  and  hope  of  cure. 
The  imprisonment  of  children  and  youthful  offend- 
ers in  association  with  vicious  and  hardened  crimi- 
nals, as  it  is  generally  done  now  by  courts,  our 
science  abhors  as  a  social  and  economic  crime  of 
terrible  gravity.  It  is  its  law  : 

That  criminal  jurisprudence  tmist  provide  for  the 
proper  separate  care  and  training  of  neglected  and 
delinquent  children  and  jiivenile  offenders. 

It  is  the  province  of  science  to  discover  and  an- 
nounce the  laws,  and  of  preachers,  philanthropists, 
sociologists,  and  political  economists,  from  the  pul- 
pit, the  rostrum,  and  the  press,  to  educate  the  public 
into  a  knowledge  and  acceptance  of  the  fundamental 
principles  which  govern  the  subject.  Then,  when 
popular  sentiment  has  compelled  what  Buckle  calls 


The  Criminal  Class  29 


"  the  most  useful  of  all  legislation,  the  repeal  of 
former  legislation,"  and  the  enactment  of  an  en- 
tirely new  and  comprehensive  code  of  criminal  law 
in  accord  with  these  principles,  some  positive  and 
useful  results  will  ensue  from  the  tremendous 
struggle  with  the  criminal  class. 


CHAPTER  III. 

CRIME. 

Crime  Defined — Three  General  Classes — Purview  of  Human  Law  is 
Social  —  Classification  by  Objective  Nature  —  Distinction  between 
Crime  and  Criminality — Moral  Depravity  the  Source  of  Crime — 
Depravity  a  Disease  —  Sources  of  the  Disease  —  Immediate  Causes  — 
Intrinsic  Causes  —  The  Synectic  —  The  Proegumenal  —  The  Proca- 
tarctic  —  The  Method  of  Cure — Criminal  Responsibility  —  Extraneous 
Causes  —  Want  —  Changes  of  Laws  and  their  Enforcement  —  Neg- 
lect and  Defects  of  Child  Training  —  Statistics  of  Illiteracy  —  Con- 
centration of  Population  —  Unrestricted  Propagation  of  Criminals  — 
Necessity  of  Prevention  —  Number  of  Convicts  Does  not  Measure 
the  Quantity  of  Crime. 

CRIME  is  defined  to  be  an  act  or  omission  which 
the  law  punishes  in  the  name  of  and  on  behalf 
of  the  State,  whether  because  expressly  forbidden 
by  statute,  or  because  so  injurious  to  the  public  as 
to  require  punishment  on  grounds  of  public  policy. 
It  is  an  act  punishable  by  law.  In  its  general  term 
"  It  includes  every  offense,  from  the  highest  to  the 
lowest  in  the  grade  of  offense,  and  includes  what 
are  called  misdemeanors  as  well  as  treason  and 
felony"  -(Taney).  The  latter  are  commonly 
called  "  high  crimes."  Violations  of  municipal 
regulations  are  not  generally  spoken  of  as  crimes. 

Justice  Breese  of  the  Supreme  Court  of  Illinois, 
declares : 

30 


Crime  31 

"  A  criminal  offense  consists  in  the  violation  of  a  public  law, 
in  the  commission  of  which  there  must  be  a  union  or  joint 
operation  of  act  and  intention,  or  criminal  neglect,  and  the 
intention  is  manifested  by  the  circumstances  connected  with 
the  perpetration  of  the  offense,  and  the  sound  mind  and 
discretion  of  the  person  accused." 

Sir  J.  F.  Stephen  states  that 

"  Criminal  Law  is  that  part  of  the  law  which  relates  to  the 
definition  and  punishment  of  acts  or  omissions  which  are  pun- 
ishable as  being  : 

"  ist.     Attacks  upon  public  order,  internal  or  external. 

"  2d.     Abuses  or  obstructions  of  public  authority. 

"  3d.     Acts  injurious  to  the  public  in  general. 

"  4th.  Attacks  upon  the  property  of  individuals  or  rights 
connected  with  and  similar  to  rights  of  property." 

A  crime  may  be  defined  more  concisely,  as  an 
act  or  omission  declared  by  law  injurious  to  pub- 
lic or  private  rights  or  welfare,  perpetrated  inten- 
tionally, by  a  sane  person.  The  considerations  of 
the  intention  and  sanity  of  the  accused  are  ad- 
ditions in  criminal-law  practice  introduced  by  the 
development  of  Christian  civilization.  The  funda- 
mental principle  of  the  Science  of  Penology  is, 
that  all  wilful  violations  of  law  are  crimes  of  some 
degree. 

All  crimes  are  divided  ethically  into  three  gen- 
eral classes.  They  may  be  sinful,  as  violating  both 
Divine  and  human  law  ;  or  vicious,  as  violating 
both  natural  and  human  law ;  or  only  legal,  as  vio- 
lating only  social  law.  The  degree  of  culpability 
of  the  transgressor  will  therefore  vary  according  to 


32  The  Science  of  Penology 

the  class  of  crime  committed.  The  laws  of  God 
and  nature  are  enforced  by  their  own  penalties 
without  the  aid  of  human  laws,  which  therefore 
alone  require  legal  punishment.  Much  of  the 
failure  of  criminal  law  to  secure  a  reduction  in 
crime  is  due  to  the  neglect  of  this  principle 
by  legislators,  and  their  futile  effort  to  usurp 
the  prerogatives  of  Divinity  and  nature  in 
the  infliction  of  penalties.  It  is  a  principle  of 
Penology ; 

That  the  proper  object  of  legal  penalties  is  to  secure 
obedience  to  the  law. 

Human  laws  may  be  designed  to  enforce  the  ob- 
servance of  the  laws  of  God  and  nature  for  the 
welfare  of  society.  Indeed,  all  wise  and  beneficent 
laws  must  conform  to  the  immutable  laws  of  God 
and  nature,  but  they  should  not  attempt  to  sup- 
plant or  usurp  the  inalienable  attributes  of  God  and 
nature  in  their  penalties.  The  supreme  object  of 
human  law  is  the  promotion  and  protection  of  the 
social  welfare ;  the  regulation  and  government  of 
the  relations  of  mankind  so  that  the  greatest  good 
and  happiness  shall  be  secured  to  the  general  mass 
with  the  least  interference  possible  with  the  free- 
dom of  choice  and  action  of  the  individual.  Its 
purview  is  confined  to  the  earthly  existence  of  man. 
It  transcends  its  sphere  and  function  when  it  at- 
tempts to  govern  or  regulate  the  relations  of  man 
with  God  or  with  nature.  The  relations  of  man  to 
his  God  are  divinely  ordained  to  be  personal. 
Men  instinctively  resent  and  oppose  even  to- 


Crime  33 

martyrdom  any  human  interference  in  these  rela- 
tions ;  therefore  human  law  errs  and  fails  when 
it  takes  cognizance  of  the  sin  or  immorality  of  crime 
in  grading  its  penalty,  except  so  far  as  it  affects 
society. 

Crimes  may  be  classified  according  to  their 
objective  nature.  The  relative  percentage  speci- 
fied of  each  class  is  that  given  in  the  Eleventh 
United  States  Census,  as  committed  by  convicts  in 
confinement  in  iSgo1  : 

Crimes  against  the  State  or  Government. — 2.2  per 
cent.  Among  these  are  assassination  of  rulers,  at- 
tack upon  the  Government,  insurrection,  treason, 
counterfeiting,  bribery  and  corruption  of  officials, 
anarchy,  communism. 

Crimes  against  Society. — 22.9  per  cent.  Rioting, 
disturbance  of  public  peace  and  order,  corruption 
of  public  morals,  perpetrating  or  maintaining  nui- 
sances, polluting  water-supply,  violation  of  election 
laws,  bribery  or  corruption  of  voters,  destruction  of 
public  property,  embezzlement  or  misuse  of  public 
funds,  malfeasance  in  office,  obstruction  of  high- 
ways, endangering  public  travel,  violations  of 
excise  and  license  laws,  disturbance  of  public  meet- 
ings, drunkenness,  prostitution,  etc. 

Crimes  against  the  Person.  —  21  per  cent. 
Murder,  homicide,  assault  with  intent  to  kill, 
assault  and  battery,  adultery,  abortion,  duelling, 
incest,  rape,  seduction,  sodomy,  libel,  forgery, 
mayhem. 

1  Compendium  of  Eleventh  Census,  Part  II.,  p.  192. 


34  The  Science  of  Penology 


Crimes  against  Property. — 45.8  per  cent.  Bur- 
glary, robbery,  theft,  arson,  embezzlement,  gam- 
bling, fraud,  perjury. 

Miscellaneous  crimes  are  also  enumerated  in  the 
Eleventh  Census  to  the  extent  of  8. 1  per  cent. 

This  classification  and  enumeration  of  crimes 
suggests  forcibly  the  wide  variation  of  guilt  and 
culpability  which  attends  their  commission.  There 
is  not  only  this  great  variation  between  the  cul- 
pability of  different  crimes,  but  there  may  be  also 
an  equal  difference  in  the  degree  of  guilt  in  the 
perpetration  of  any  one  of  them,  according  to  the 
malice,  fraud,  negligence,  knowledge,  intention, 
will,  sanity,  and  excuse  of  the  perpetrator.  Murder, 
for  instance,  may  be  attended  with  circumstances 
of  shocking  atrocity,  malice  aforethought,  and  pre- 
meditation ;  or  done  under  great  provocation  at 
unjustifiable  attack,  in  sudden  passion,  without 
premeditation  ;  or  the  homicide  may  be  the  act  of 
frenzied  insanity  without  any  cause  or  reason.  The 
law  regards  these  circumstances  in  the  punishments 
imposed,  which  vary  from  the  death  penalty  to  im- 
prisonments for  different  terms,  and  to  confinement 
in  an  insane  asylum.  Similar  circumstances  modify 
the  penalties  for  other  crimes. 

All  crime  is  defined  and  constituted  by  law. 
Where  there  is  no  law  there  can  be  no  crime.  Ac- 
cording as  laws  differ  in  different  nations  and  at 
different  periods  of  history  and  civilization,  crimes 
are  and  have  been  different.  Many  crimes  which 
were  once  severely  dealt  with  are  now  unknown, 


Crime  35 

and  many  new  crimes  have  resulted  from  the  meth- 
ods, activities,  and  necessities  of  modern  civilization. 
A  full  and  instructive  history  of  these  changes  is 
given  in  the  chapter  on  Crime  in  Dr.  Wines'  ex- 
cellent book  on  Punishment  and  Reformation*  But 
that  distinguished  penologist  has  there  failed,  as  all 
criminal  legislators  have  failed,  to  discriminate  the 
vital  and  fundamental  distinction  between  crime  and 
criminality.  Crime  is  the  detected  sign,  symptom, 
and  result  of  a  human  personal  condition.  It  is  the 
overt  act,  of  which  alone  the  law  can  take  cogni- 
zance and  from  it  declare  the  character  of  the  per- 
petrator to  be  criminal.  By  this  the  character  is 
diagnosed ;  but  it  does  not  create,  or  generate,  or 
constitute  criminality  in  the  individual.  Criminal- 
ity existed  in  the  accused  before  he  was  convicted, 
and  was  as  virulent  then  as  after  the  law  had  pro- 
nounced him  criminal.  Laws  have  changed  and 
crimes  have  changed  in  the  progress  of  civilization  ; 
but  criminialty  has  remained  a  constant  quantity  in 
the  ranks  of  humanity  in  all  ages  and  in  all  lands. 
The  laws  may  increase  or  decrease  their  specifica- 
tions of  crime,  and  vary  the  penalties  which  they 
inflict  upon' the  guilty,  thus  altering  the  statistical 
number  of  convicts,  without  affecting  the  proportion 
of  criminality  among  those  subject  to  them.  The 
line  between  right  and  wrong  is  a  straight  line,  fixed 
and  invariable,  which  divides  honesty  and  rectitude 
strictly  from  criminality  and  turpitude  ;  but  human 
laws  vary  and  change  according  to  the  wisdom,  hon- 
esty, and  designs  of  legislators.  If  the  laws  cross 


36  The  Science  of  Penology 


this  line  on  either  side  they  necessarily  catch  in  their 
meshes  some  who  should  go  free,  and  loose  some 
who  should  be  apprehended.  Varying  social  im- 
pulses and  influences,  even,  may  temporarily  cause 
the  edges  of  the  crowds  to  surge  over  on  either  side 
of  this  line,  but  the  two  masses  will  never  unite,  any 
more  than  oil  and  water.  No  men  whose  lives  are 
firmly  and  intelligently  governed  by  righteous  prin- 
ciples and  obedience  to  law,  commit  crimes  ;  all  who 
are  subject  to  selfish  instincts,  desires,  temptations, 
uncontrolled  passions,  perverted  judgment,  and  de- 
fective intelligence  are  liable  to  commit  crimes, 
whatever  the  laws  may  be,  or  wherever  their  lot  is 
cast.  The  number  of  those  who  are  thus  subject 
to  criminality  in  any  particular  state  of  society  con- 
stitutes that  distinct  class  of  which  we  treated  in  the 
preceding  chapter. 

Why  is  it  that  some  persons  commit  crimes  and 
others  do  not  ?  This  is  the  vital  and  crucial  ques- 
tion, the  answer  to  which  must  give  direction  and 
form  to  any  hopeful  system  for  the  defense  of 
society  against  crime.  The  accurate  solution  of  this 
question  is  the  basis  of  penological  science.  All 
biological,  anthropological,  sociological,  philosoph- 
ical, and  theological  investigations  of  criminality 
have  been  chiefly  concerned  with  its  determination. 
The  knowledge  which  has  been  acquired  through 
these  studies  enables  us  now  to  arrive  at  some  sci- 
entific conclusions  concerning  criminality.  An  ex- 
amination of  the  several  classes  of  crimes  which 
have  been  enumerated  suggests  that  an  uncontrolled 


Crime  37 

selfish  desire  for  personal  gratification  regardless  of 
others,  malice,  and  ungoverned  passion  are  the 
general  motives  for  all  crimes  ;  that  erroneous  and 
misguided  opinions  and  judgment  of  social  condi- 
tions and  relations  are  also  general  incentives  or 
contributory  agencies  ;  that  deficient  moral  resist- 
ance to  the  temptation  allows  the  motive  to  develop 
into  action.  The  causes,  motives,  and  temptations 
to  crime  exert  a  uniform,  universal  pressure  in  every 
direction  upon  the  whole  of  humanity  like  a  fluid 
saturation,  the  head  of  which  is  governed  by  the 
state  of  morals,  the  customs  and  laws  of  the  time 
and  place.  This  pressure  breaks  out  into  crime  at 
the  points  of  least  resistance.  Those  who  yield  to 
it  possess  less  strength  of  moral  character,  less  men- 
tal power,  will,  and  self-control  than  the  average,  or 
they  have  an  inordinate  animal  development.  They 
are  below  the  necessary  standard  of  resistance,  or 
have  a  weak,  unbalanced  constitution.  They  are, 
in  brief,  morally  depraved,  or  debased.  Moral  de- 
pravity is  the  sum  and  substance  of  criminality, 
— the  reason  why  men  commit  crime.  It  is  a  posi- 
tive deduction  of  Penology, — 

That  the  cause  of  crime  is  the  moral  depravity  of 
the  criminal. 

The  reduction  of  the  volume  of  crime  depends, 
therefore,  upon  the  successful  treatment  of  the 
disease,  and  is  in  direct  ratio  to  the  increase  of 
the  powers  of  resistance  of  the  individuals  in 
the  social  mass. 

Criminal  moral  depravity  is  an  actual  condition 


38  The  Science  of  Penology 


of  individual  character,  not  a  transitory  passion  or 
disposition.  It  is  an  abnormal  state  of  the  human 
system  ;  the  normal  condition  of  which  is  physical, 
mental,  and  moral  health.1  We  do  not  mean  by 
the  term  normal  man  a  perfect  man.  It  has  never 
been  extensively  claimed  that  any  perfect  man  ever 
lived,  save  Christ  only.  We  define  the  normal  man, 
for  the  purpose  of  criminology  and  penological 
science,  to  be  a  healthy  man,  a  sane  man,  an  honest 
man.  The  normal  man  possesses  such  a  physical 
constitution,  such  mental  development,  such  moral 
principle,  as  render  him  disposed  and  able  to  con- 
trol his  actions,  his  appetites,  passions,  and  evil 
propensities  within  the  limits  prescribed  for  the 
welfare  of  his  social  enviroment.  The  normal  man 
is  governed  by  reason  and  law  ;  the  life  of  the  ab- 
normal man  is  impelled,  inspired,  and  controlled  by 
animal  desires  and  passions,  delusions,  erratic  and 
irrational  mental  functions,  or  he  is  incapable  from 
weakness.  Criminal  moral  depravity  is  a  distinct 
and  easily  recognized  disease  which  may  be  organic 
or  functional,  chronic  or  acute,  inherited  or  casual, 
curable  or  incurable,  like  other  human  diseases. 
It  is  diagnosed  from  the  faulty,  erroneous,  and 
wrong  functioning  of  the  system.  This  derange- 
ment is  produced  by  some  defect  or  disorder  of 
either  the  physical,  mental,  or  moral  systems,  or  of 
two,  or  all  of  them  in  conjunction.  The  disease  is 
a  condition  in  which  the  natural,  proper,  and  cor- 
rect relation  between  the  selfish  egoistic  and  the 

1  The  Criminal,  Drahms,  p.  197. 


Crime  39 

altruistic  righteous  instincts  is  disturbed,  and  the 
just  balance  of  control  is  lost.  Prudence  and 
honesty  are  unable  to  resist  the  desire  for  immedi- 
ate gratification.  Malevolence  overrules  virtue, 
just  as  in  physical  disease  destruction  of  tissue  ex- 
ceeds construction.  This  is  the  disease  which  con- 
stitutes that  moral  depravity  of  character  which  we 
call  criminality.  It  runs  the  physical  gamut  from 
the  deformed  weakling  to  the  pugilistic  athlete,  the 
intellectual  scale  from  idiocy  to  genius,  the  moral 
from  total  depravity  and  incorrigibility  to  religious 
fanaticism.  //  is  a  theorem  of  Penology  that  crimi- 
nality is  a  diseased  condition  of  human  character? 

It  is  estimated  by  criminologists  that  from  fifty 
to  seventy-five  per  cent,  of  the  detected  cases  of 
criminality  are  the  result  of  prenatal  causes2;  the 
remainder  being  caused  by  insalubrious  or  deleteri- 
ous youthful  environment,  or  by  defective  educa- 
tion. Bad  heredity  may  beget  a  defective,  deformed- 
or  diseased  physical  organism ;  in  which  case  the 
mental  and  moral  functions  are  disordered.  Bad 
environment  may  arrest  the  uniform  and  harmonious 
development  of  the  normal  organs  and  functions ; 
or  may  infect,  corrupt,  and  demoralize  them.  Both 
produce  an  abnormal,  diseased  moral  character. 
Whatever  may  be  the  case,  the  condition  is  the 
same  in  its  general  character,  and  is  included  under 
the  single  name  of  criminality,  just  as  other  dis- 
eases displaying  endless  varieties  have  specific 
names. 

1  Practical  Sociology,  p.  382.  s  The  Criminal,  Drahms,  p.  286. 


40  The  Science  of  Penology 


All  the  immediate  causes  of  crime  are  either  ex- 
traneous or  intrinsic  to  the  individual.  The  extra- 
neous causes  are  the  opportunities,  incitements,  and 
temptations  which  his  nature  is  unable  to  resist. 
The  intrinsic  causes  are  inordinate  desires  and 
passions,  defective  or  diseased  physical  organs,  or 
a  weakness  of  moral  character  which  yields  to  the 
power  of  the  extraneous  influences.  The  ultimate 
cause  of  all  crime,  therefore,  is  to  be  found  in  the 
character  of  the  criminal.  Science  formulates  this 
law  : 

That  society  must  secure  protection  from  crime 
and  the  social  disease  of  criminality  by  treatment  of 
individual  criminals. 

In  diagnosing  the  causes  of  the  disease  of  crim- 
inality in  the  individual,  conciseness  requires  us  to 
follow  the  analysis  of  the  physician  ;  even  if  we  are 
compelled  to  use  a  technical  nomenclature.  Phy- 
sicians recognize  three  kinds  of  causes  of  disease  : 
the  procatarctic,  which  is  an  antecedent  condition 
of  things  outside  of  the  principal  cause,  facilitating 
the  production  of  the  effect ;  the  proegumenal,  or 
that  within  the  principal  cause  which  either  predis- 
poses or  directly  excites  it  to  action ;  and  the 
synectic,  or  continent  cause,  which  is  the  essence  of 
the  disease  itself,  considered  as  the  cause  of  the 
symptoms. 

Applying  these  terms  to  our  analysis  we  find  that 
moral  depravity  or  degeneracy  may  be  denominated 
the  synectic  cause  of  criminality.  This  is  an  ab- 
normal and  unnatural  condition  of  the  organic 


Crime  41 

structure  of  the  human  system,  which  necessarily 
produces  faulty  and  erroneous  function.  This  or- 
ganic abnormality  may  be  of  the  physical,  mental, 
or  moral  system.  Physical  abnormality  is  the  most 
readily  discovered,  and  has  received  the  most 
thorough  scientific  examination.  Mental  abnor- 
mality, which  is  also  easily  observed,  varies  like  the 
physical  in  degree  and  intensity.  It  is  an  unsettled 
question  whether  mental  or  moral  traits  of  character 
are  transmitted  independently  by  inheritance  to  the 
same  extent  as  physical  similarities,  except  as  they 
depend  upon  and  are  governed  by  the  physical 
constitutional  inheritance.  We  know  that  intel- 
lectual characteristics  depend  upon  the  structure  of 
the  brain  and  nervous  system,  which,  like  the  rest 
of  the  physique,  is  greatly  modified  by  heredity  and 
environment.  We  know  also  that  morality  and 
honesty  are  associated  with  a  healthy  physique 
and  an  evenly  balanced,  properly  cultivated  brain  ; 
although  we  have  not  yet  discovered  the  exact  rela- 
tions between  the  three  elements  of  human  nature. 
Some  persons  are  by  nature  honest,  upright,  truth- 
ful. They  have  no  disposition  toward  any  form  of 
vice.  Others  refrain  from  falsehood,  dishonesty, 
and  crime  by  a  constant  struggle  against  tempta- 
tion. Still  others  maintain  the  semblance  of  honesty 
from  a  regard  for  public  reputation,  without  any 
principle  on  the  subject ;  or  with  the  belief  that  it 
is  "  smart "  to  use  honesty  and  honor  as  cloaks 
wherewith  to  dupe  their  fellows,  while  they  prey 
upon  them.  Next  to  these  are  the  criminals  who 


42  The  Science  of  Penology 

make  crime  a  profession.  In  the  criminal  class  are 
found  professional  embezzlers,  forgers,  counter- 
feiters, burglars,  thieves,  shoplifters,  drunkards, 
murderers,  fighters,  sexual  criminals,  political  crim- 
inals, anarchists,  etc.,  who  confine  themselves  to 
their  special  kinds  of  crime.  These  species  are 
subdivided  into  orders  which  have  their  regular 
practitioners.  There  are  house  burglars,  store  and 
safe  burglars,  bank  burglars,  porch  climbers. 
There  are  thieves  of  specialties,  beyond  which  they 
never  go  :  till  thieves,  house  sneak-thieves,  pick- 
pockets, shoplifters,  lead-pipe  thieves,  junk  thieves, 
hotel  and  boarding-house  thieves,  and  others.  It 
is  impossible  to  resist  the  conclusion,  in  view  of 
these  known  facts,  that  these  varieties  of  crime  are 
due  to  natural  predispositions,  caused  by  peculiar- 
ities of  the  physical  constitution.  The  synectic 
cause  of  criminality  is,  therefore,  defective  organism 
or  function. 

The  proegumenal  cause  exists  in  the  abnormal 
relations  of  the  organs,  or  their  unnatural  operation. 
They  are  unbalanced,  without  their  natural  counter- 
poise of  sound  judgment.  A  predominance  of  the 
organs  of  selfish  gratification  and  evil  propensity 
over  those  of  sound  judgment  and  self-restraint 
predisposes  to  moral  depravity  and  incites  criminal 
action. 

The  procatarctic  causes  of  moral  depravity  are 
those  which  produce  the  defective  or  diseased  con- 
dition of  the  human  organism,  and  its  faulty  func- 
tions. Such  causes  are  inherited  peculiarities, 


Crime  43 

arrested  development,  deficient  nutrition,  and  in- 
fection— translated  into  penological  terms,  hered- 
ity and  environment.  Faulty  function  results  from 
the  imperfect  condition,  or  the  disproportionate 
powers  and  relations  of  the  organs,  caused  by  de- 
fective birth  or  development. 

The  diagnosis  of  criminality,  then,  indicates  the 
necessity  of  restoring  the  equilibrium  or  natural 
healthy  relations  of  the  organs  by  means  of  which 
character  is  manifested.  Physical  development, 
mental  balance,  and  moral  principle  are  the  cure  of 
the  disease.  We  deduce  from  this  analysis  of  the 
causation  of  criminality  in  the  individual  these 
corollaries  : 

That  the  diminution  of  crime  can  be  effected  only 
by  the  confinement  of  all  detected  criminals  iintil 
their  moral  depravity  is  reformed,  and 

That  the  cure  of  moral  depravity  in  the  criminal 
consists  in  the  elimination  of  the  causes  of  the  de- 
generation of  the  organs  of  character  and  the  re- 
storation of  their  normal  functions. 

This  psycho-physiological  phase  of  the  intrinsic 
causes  of  criminality  does  not  necessarily  relieve 
the  criminal  from  moral  responsibility  for  his  crime, 
any  more  than  it  relieves  him  from  legal  responsi- 
bility. He  possesses  freedom  of  choice  between 
good  and  evil ;  he  has  freedom  of  will  to  refrain 
from  crime,  but  lacks  will-power  to  develop  that 
character  which  it  is  incumbent  upon  every  one  to 
secure  for  himself.  When  temptation  or  oppor- 
tunity comes,  the  criminal  desire  or  passion  is  too 


44  The  Science  of  Penology 


strong  for  his  weak  morality,  which  should  be  the 
conservative  principle  of  his  character,  and  so  he 
yields  by  his  own  feebleness  of  will.  The  only  ex- 
ception to  this  is  the  incorrigible,  or  incurable  in- 
stinctive criminal.  Possibly  he  has  little  more  moral 
responsibility  than  the  insane  criminal ;  although 
science  has  not  yet  so  positively  determined  this 
as  it  has  in  the  case  of  mental  insanity. 

The  causes  of  crime  extraneous  to  the  perpe- 
trator are,  in  general,  of  a  social  or  economic 
nature.  First  among  them  is  the  pressure  of 
want,  which  varies  according  to  the  environment 
of  the  individual,  and  the  economic  conditions. 
The  criminal  may  actually  need  food  and  clothes  ; 
or  he  may  want  unearned  luxuries,  indulgences, 
social,  business,  and  political  privileges  or  ad- 
vantages. The  variations  of  this  pressure  under 
different  social  conditions,  and  in  different  places, 
and  at  different  times,  produce  a  corresponding 
difference  in  the  number  of  crimes  committed  by 
an  individual  of  the  same  character. 

Second  :  The  changes  in  and  multiplication  of 
laws,  in  the  progress  of  civilization,  alter  the  na- 
ture of  crimes,  and  cause  a  very  wide  divergence 
in  the  manifestations  of  criminality  in  different 
countries,  and  at  different  periods  in  the  same 
country.  Dr.  Wright  cites  in  illustration  the 
criminal  history  of  Massachusetts  between  1860 
and  1880;  during  which  period  578,348  sentences 
were  imposed  upon  criminals  in  that  State,  of  which 
60  per  cent,  were  for  liquor  offenses  of  some  kind. 


Crime  45 

The  population  increased  50.4  per  cent.  ;  the  total 
sentences,  70.4  per  cent.;  sentences  for  drunkenness, 
155.9  Per  cent.  ;  high  crimes,  39.6  per  cent.  ;  all 
other  crimes,  20.1  per  cent.  In  1870  the  total  sen- 
tences showed  an1  increase  of  140.3  per  cent.  ;  and 
drunkenness  198  per  cent,  over  1860.  In  1875, 
with  an  increase  of  34.  i  per  cent,  of  population, 
the  total  sentences  increased  144  per  cent.  ;  drunk- 
enness, 271.8  per  cent.1  These  mutations  of  crimi- 
nality were  caused  by  changes  in  the  license  and 
liquor  laws,  and  in  the  manner  of  their  enforce- 
ment. Alterations  in  laws  are  more  important  as 
causing  remarkable  changes  in  penal  statistics  than 
in  crime  itself. 

Another  considerable  factor  of  the  same  kind  is 
the  variation  of  the  vigilance  of  officials  in  execut- 
ing the  laws  at  different  periods,  according  to  pub- 
lic interest  and  sentiment.  This  has  not  only  a 
restraining  influence  upon  the  criminal  disposition 
of  individuals,  which  tends  to  diminish  crime,  but 
also  increases  or  diminishes  the  record  of  crime  for 
the  period.  It  is  a  corollary  of  penological  science  : 

That  the  recorded  convictions  for  crime  cannot 
certainly  indicate  either  increase  or  decrease  of  crim- 
inality, unless  we  consider  concomitant  laivs  and  their 
execution. 

The  third  and  great  extraneous  cause  of  crime  is 
the  inadequate  training  and  instruction  of  children. 
This  applies  not  only  to  the  orphaned,  neglected, 
delinquent  social  waifs  in-  and  outside  of  public 

1  Practical  Sociology,  p.  354. 


46  The  Science  of  Penology 


institutions,  but  to  all  the  young  of  society,  both 
rich  and  poor  ;  more  particularly  to  the  children 
of  the  poor,  the  mass  of  the  people  who  depend  en- 
tirely upon  the  public  schools  for  instruction.  Intel- 
lectual education  is  crowded  upon  those  who  attend 
school  almost  beyond  their  ability  to  absorb  it  ;  but 
physical,  industrial,  and  moral  training  are  compar- 
atively neglected.  The  consequence  is  an  abnormal 
and  excessive  mental  development,  often  at  the  ex- 
pense of  the  physical  and  moral  nature ;  an  unnat- 
ural condition  of  the  system  is  produced  which 
predisposes  to  erroneous  and  abnormal,  possibly 
criminal,  action.  The  physical  and  moral  powers 
are  not  only  correspondingly  atrophied  by  neglect, 
but  the  desires  and  wants  are  stimulated  and  ex- 
alted above  their  natural  social  standards.  The 
field  of  temptation  is  broadened,  its  potency  inten- 
sified ;  while  the  conservative  powers  of  resistance 
are  weakened  so  that  imperfect  education  defeats 
the  very  purpose  for  which  public  instruction  is  pro- 
vided by  the  State,  and  becomes  an  active  deleteri- 
ous social  factor,  an  actual  instigator  of  crime. 
The  statistics  concerning  the  illiteracy  of  convicts 
very  clearly  indicate  that  mental  instruction  alone 
has  no  restrictive  effect  upon  crime  ;  as  there  appears 
to  be  a  smaller  percentage  of  illiteracy  among  con- 
victs than  among  the  communities  in  which  they 
are  found.  The  United  States  Census  of  1890 
shows  an  illiteracy  of  13.34  percent,  of  the  popula- 
tion ten  years  old  and  over ;  from  which  age  the 
criminal  class  must  be  derived. 


Crime  47 


The  illiterates  in  penitentiaries  in  the  U .  S.  in  1 890  were  13   per  cent,  of  total. 

Western  Penitentiary  of  Pa.  in  1 899  8 . 39 

Eastern            "               "             "  11.38 

Sing  Sing         "     of  New  York  "  8.00 

Auburn                                          "  9.07 

Clinton  Prison                "            "  10.45 

Joliet          "          of  Illinois  in  1896  6.52 

Of  25,701  prisoners  committed  in  Massachusetts 
during  the  year  ending  September  30,  1899,  J3  Per 
cent,  were  illiterate  ;  of  3619  convicts  committed  to 
county  jails  during  the  year  ending  September  30, 
1899,  in  Pennsylvania,  11.25  Per  cent,  were  illiter- 
ate. These  figures  are  taken  from  official  reports. 
Lombroso  found  95  per  cent,  of  507  criminals  pos- 
sessed of  elementary  education,  when  only  69  per 
cent,  of  the  population  were  literate.  Dr.  Ogle, 
in  a  recent  report,  gives  the  percentage  of  illiteracy 
in  Great  Britain  at  15  per  cent,  while  that  of  its 
convicts  is  but  about  10  per  cent.1 

Ignorance  is  also,  of  course,  a  cause  of  crime  ;  as 
are  indolence,  idleness,  unfitness  for  profitable  work, 
intemperance,  licentiousness,  and  other  vices ;  but 
they  are  incidental  and  indirect,  rather  than  proxi- 
mate like  partial  mental  education. 

The  fourth  great  cause  of  crime  in  modern  times 
is  the  concentration  of  the  mass  of  the  people  into 
dense  communities,  with  the  consequent  impair- 
ment or  destruction  of  domestic  privacy  and  family 
life.  Temptations  to  vice  and  crime  are  created 
by  the  inordinate  display  of  wealth  and  luxury,  by 
dishonesty  in  high  places,  by  criminal  contagion, 

1  The  Criminal,  p.  74. 


48  The  Science  of  Penology 


by  the  association  of  children  and  youth  of  all 
classes  on  the  streets  and  in  public  places,  and  by 
unsanitary  and  immoral  conditions.  In  cities,  vice 
stimulates  and  nurtures  vice  ;  crime  begets  and 
most  easily  conceals  crime.1  Over  55  per  cent, 
of  the  convicts  in  the  penitentiaries  of  Pennsyl- 
vania are  charged  against  counties  having  large 
cities  in  them.  Philadelphia  furnished,  in  1890, 
a  convict  in  penitentiary,  jail,  or  reformatory 
for  every  327  of  its  inhabitants,  while  the  rural 
counties  of  Pennsylvania  furnished  in  that  year 
only  one  such  convict  to  2418  of  their  popula- 
tion ;  the  city  having  nearly  eight  times  the  rural 
average.  Of  the  99,336  arrests  made  in  Massa- 
chusetts during  1899,  85,421,  or  about  86  percent., 
were  made  in  its  cities. 1  Dr.  Drahms  says  : 
"  Ninety  per  cent,  of  the  acquired  criminalism  of 
the  land  is  thus  begotten  and  reared  in,  and  re- 
ceives the  initial  stamp  of,  the  social  environment 
in  which  it  is  engendered,  and  which  holds  it  ever 
after  true  to  its  ideal."2 

The  fifth  cause  of  the  disease  of  criminality  in 
society  is  the  propagation  of  defective,  depraved, 
and  criminally  disposed  children  by  defective,  de- 
praved, and  criminally  diseased  parents.  There  is 
no  law  of  nature  more  absolute  and  invariable  than 
the  law  of  reproduction,  that  "like  produces  like." 
Figs  cannot  be  grown  from  the  seed  of  thistles, 
grapes  from  thorns,  or  honest  moral  characters  be 

1  Massachusetts  Prison  Association  Bulletin  No,  12, 
3  The  Criminal,  p.  284. 


Crime  49 

engendered  by  parents  diseased  with  moral  de- 
pravity. It  is  not  only  a  natural  impossibility  for 
criminals  to  produce  morally  sound  children,  but  it 
is  a  general  law  of  biology  that  the  lower  the 
position  of  the  animal  in  the  scale  of  existence,  the 
greater  is  its  capacity  and  desire  for  the  repro- 
duction of  its  kind.  With  mankind  the  operation 
of  this  law  tends  to  a  disproportionate  multiplica- 
tion of  the  imperfect  and  bad  social  elements.  The 
continual  replenishment  of  the  criminal  class  is  not, 
however,  limited  to  the  reproduction  of  criminals. 
An  inherited  taint  of  insanity,  drunkenness,  idiocy, 
epilepsy,  syphilis,  tuberculosis,  scrofula,  and  other 
physical  or  mental  diseases  or  imperfections  is 
liable  to  produce  moral  depravity  in  the  offspring. 
These  are  established  facts  in  anthropology,  and  im- 
pose upon  society  the  imperative  necessity  of  prohib- 
iting the  marriage  of  such  defective  persons.1  The 
science  of  heredity  makes  it  probable  that  not  only 
the  fifty  to  seventy-five  per  cent,  of  criminal  moral 
depravity  which  has  been  traced,  but  nearly  every 
case  of  it  is  due  to  a  diseased  or  disordered  organ- 
ism or  function  of  organs,  produced  by  ancestral 
influences.  Good  seed  generates  sound  and  healthy 
fruit,  and  imperfect  parentage  can  only  yield  defec- 
tive offspring.  The  cycles  of  crime  which  notably 
follow  a  publication  in  the  newspapers  of  an 
especially  shocking  kind  of  crime,  like  the  murder  of 
children  by  a  parent,  an  atrocious  sexual  crime,  a 
great  burglary  or  daring  highway  robbery,  or  a 

1  See  Strahan,  Marriage,  and  McKim,  Heredity  and  Human  Progress. 


50  The  Science  of  Penology 


remarkable  suicide,  voiced  in  common  parlance  as 
an  "epidemic  of  crime,"  are  developments  of  the 
latent  disease  in  society  under  the  stimulus  of 
contagious  example. 

These  are  the  principal  genetic  causes  of  crime 
in  the  present  state  of  society,  and  the  mere  state- 
ment of  them  makes  it  evident  that  the  progress  of 
humanity  and  the  rapid  rate  of  modern  civilization 
multiply  continually  the  causes  of  crime,  and  in- 
tensify the  action  of  all  the  influences  which  en- 
gender the  social  disease  of  criminality.  If  crime 
has  not  actually  increased  in  a  ratio  corresponding 
to  this  multiplication  and  intensification  of  causes, 
the  counteracting  agencies  have  measurably  kept 
pace  with  their  growth.  That  there  has  been  no 
demonstrable  decrease  of  crime  or  criminality,  not- 
withstanding the  unparalleled  recent  advance  in 
social  and  criminological  science,  is  an  evidence 
that  Penology  has  fallen  behind  in  the  march  of 
progress. 

It  is  also  manifest  from  the  foregoing  con- 
sideration of  crime,  that  while  individual  cases  of 
the  disease  can  be  cured,  as  cases  of  other  prev- 
alent diseases  may  be,  the  plague  cannot  be  erad- 
icated from  the  social  system  by  confining 
treatment  to  developed  cases.  It  is  a  positive  law 
of  Penology :  That  the  restriction  of  criminality 
depends  mainly  upon  prevention  of  the  disease  of 
moral  depravity. 

It  is  impossible  to  state  the  number  of  crimes 
committed  in  any  civil  state  during  any  particular 


Crime  51 

period,  or  to  compare  intelligently  the  quantity  of 
crime  perpetrated  during  one  period  with  that  in 
another.  The  number  of  convicts  in  confinement 
at  any  one  time  has  no  reliable  relation  to  the 
amount  of  crime  committed.1  It  may  be  assumed 
that  the  number  of  arrests  made  during  a  certain 
period  indicates  that  at  least  one  crime  was  per- 
petrated for  each  arrest.  The  number  of  crimes 
committed  for  which  no  arrests  are  made,  in  most 
communities  in  this  country,  exceeds  the  number 
for  which  arrests  are  made.  There  are  many  grave 
and  heinous  crimes  committed,  the  perpetrators 
of  which,  although  the  crimes  are  publicly  known, 
escape  detection  or  arrest  by  their  cunning  or  the 
stupidity  or  connivance  of  the  police.  A  large 
number  of  crimes  are  committed,  also,  which  for 
various  reasons  are  occult,  and  the  perpetrators 
of  which  are  not  arrested.  The  estimated  number 
of  crimes  committed  in  the  United  States  during 
1899  was  978,879;  being  one  for  every  22.13  °f 
the  population  in  1900.  Only  one,  however,  of 
about  every  twenty-two  persons  arrested  was  con- 
victed for  felony  and  placed  in  confinement.2 

1  "  Is  Crime  Increasing  ?"     Prof.  Falkner,  The  Forum,  July,  1900. 
8  See  Appendix  A. 


CHAPTER  IV. 

THE   DETECTION   AND    IDENTIFICATION  OF  CRIMINALS. 

The  Criminal  at  Liberty  the  Danger  —  Heredity  and  Human  Progress — 
All  Criminals  to  be  Kept  Confined — Scientific  Treatment  in  Prison 
— Skilful  Diagnosis  Essential  to  Cure  ;  to  Future  Protection  —  Identi- 
fication of  Presumptive  Criminals  —  The  Bertillon  System  —  Method 
and  Details  of  —  Explanation  of  its  Use  —  Proof  of  Accuracy  —  In- 
dispensable Advantages — National  Bureau  in  America — Importance 
and  Value  —  Number  of  Signalments  in  France,  1899  —  A  System 
— Use  to  Prevent  Immigration  of  Criminals — Census  Signalment. 

IT  is  the  criminal  at  large  who  afflicts  the  public, 
rather  than  the  convict  in  prison.  It  is  against 
the  criminal  at  large  that  we  lock  our  safes,  bar 
our  doors,  pay  our  watchmen,  police  our  streets, 
arm  our  persons,  maintain  our  courts,  and  provide 
our  prisons.  The  supreme  object  of  the  study  of 
the  convict  by  criminologists  has  been,  and  must 
ever  be,  to  obtain  knowledge  about  him  which  can 
be  used  to  protect  society  from  his  depredations 
while  he  is  at  liberty,  before  he  is  caught.  Fifty 
years  ago,  when  the  islands  of  Martha's  Vineyard 
and  Nantucket,  off  the  coast  of  Massachusetts, 
were  exclusively  inhabited  by  fisher  folk  and 
whalers,  before  steamboats  carried  excursionists 
and  summer  visitors  to  their  salubrious  shores,  no 
master  of  a  vessel  would  land  a  stranger  or  sus- 
picious character  on  them.  The  men  were  on  the 

52 


Detection  and  Identification  53 


sea,  the  women  and  children  were  left  secure  to 
the  protection  of  the  sea.  There  were  no  locks  on 
doors  or  windows,  which  were  only  closed  against 
the  weather  ;  the  jail  was  without  a  tenant,  the 
court  was  only  opened  once  a  year  as  a  matter  of 
form,  and  crime  was  almost  unknown.  The  growth 
of  population,  the  progress  of  civilization,  the  in- 
crease of  wealth,  the  multiplication  of  modern 
means  of  intercommunication  with  the  mainland, 
the  introduction  of  summer  cottages,  and  the  estab- 
lishment of  seaside  resorts  have  in  these  latter 
days  reduced  these  Arcadian  isles  to  the  defense- 
less social  conditions  of  ordinary  humanity.  The 
safety,  peace,  and  comfort  of  life  which  prevailed 
there  fifty  years  ago  might  be  enjoyed  everywhere 
if  we  could  only  eliminate  this  noxious  two  per 
cent,  of  criminality.  It  is  not  to  be  wondered  at 
that  Dr.  Me  Kim,  in  his  Heredity  and  Human 
Progress,  so  eloquently  urges  the  extermination 
of  criminals  by  a  painless  death.  Indeed  it  is  a 
debatable  question  how  much  ninety-eight  per 
cent,  of  humanity  ought  to  suffer  from  this  insig- 
nificant minority  without  revolt. 

As  public  sentiment  does  not  yet  support  the  pure- 
ly scientific  plan  of  Dr.  McKim,  practical  Penology 
must  be  directed  toward  efforts  to  secure  an  ade- 
quate defence  of  society  in  less  drastic  even  if  more 
expensive  ways.  If  we  may  not  exterminate  the 
criminal  class  by  death,  we  can  nullify  its  anti-social 
activities  by  confinement.  The  State  cannot,  with 
its  present  knowledge,  pronounce  positively  that  any 


54  The  Science  of  Penology 


person  is  infected  with  the  disease  of  criminality 
until  it  is  proved  by  an  actual  crime.  But  when  the 
disease  has  once  manifested  itself  by  the  overt  act, 
it  is  the  plain  obligation  of  the  State  to  retain  the 
patient  in  seclusion  until  pronounced  cured  by  com- 
petent authority.  This,  in  course  of  time,  will 
equalize  the  percentage  of  arrests  with  that  of  con- 
victs, either  by  increasing  the  number  in  confine- 
ment, or  by  decreasing  the  number  of  crimes,  until 
there  are  none  left  at  large  to  commit  them.  So 
long  as  all  the  diseased  are  in  the  hospital  or  reform- 
atory they  will  commit  no  more  crime.  It  is,  then, 
a  law  of  modern  Penology,  that  every  person  con- 
victed of  crime  must  be  kept  in  confinement  until 
cured  of  the  disposition  to  commit  crime. 

Repression  of  crime  will  be  largely  accomplished 
by  this  continuous  confinement  of  all  convicts. 
When  the  criminal  reaches  the  prison  the  work  of 
reformation  and  cure  begins.  An  examination  and 
study  of  each  case  admitted  must  be  made  by 
skilled  experts ;  a  course  of  treatment  decided 
upon,  and  its  administration  conducted  by  trained 
and  intelligent  assistants.  The  recorded  results  of 
a  very  large  number  of  such  examinations  by  dis- 
tinguished scientific  penologists  in  various  countries, 
of  all  kinds  of  criminals,  and  of  many  different  races 
of  people,  warrant  the  conclusion  that  most  crimi- 
nals belong  pathologically  to  either  the  hereditary  or 
the  environmental  subdivision.  As  inherited  disease 
is  the  most  difficult  to  eradicate  and  least  hopeful  of 
cure,  and  chronic  cases  almost  equally  so,  each  will 


Detection  and  Identification  55 


require  a  special  and  different  regimen  from  those 
cases  which  are  of  a  transient  nature.  There  will 
also  be  disclosed  the  widest  variations  of  intelli- 
gence, of  mental  capacity,  of  moral  and  physical 
conditions,  of  vicious  habits  and  propensities,  de- 
manding consideration  and  modification  of  the 
treatment.  The  expert  into  whose  charge  the 
criminal  is  committed  must,  then,  be  a  skilful  diag- 
nostician to  discover  these  conditions.  He  must 
also  be  learned  and  experienced  in  the  application 
of  appropriate  remedies  to  each  case.  The  history 
of  Penology,  in  the  last  century  especially,  has  de- 
veloped specialists  of  distinction  in  the  science  who 
have  displayed  great  natural  genius  and  ability,  and 
demonstrated  by  their  success  and  achievements 
that  there  are  men  peculiarly  fitted  for  this  work  ;  of 
whom  Doctors  E.  C.  and  F.  H.  Wines,  father  and  son, 
Messrs.  Brockway,  Sanborn,  Maj.  McClaury,  Gen. 
Brinkerhoff,  Mr.  Cassidy,  and  others  of  our  own  land, 
not  to  speak  of  those  of  other  lan$s,  are  shining  ex- 
amples. In  view  of  these  facts  it  is  evidently  worse 
than  useless,  and  indeed  penological  malpractice  of 
the  most  serious  degree,  to  place  reformatories  and 
prisons,  for  political  or  other  reasons,  in  charge  of 
men  without  the  proper  qualifications.  Medical 
malpractice  is  a  crime,  and  so  is  the  practice  of  sur- 
gery without  a  warrant  of  proper  qualifications. 
The  codes  of  the  future  must  make  it  equally  a 
crime  for  unqualified  persons  to  attempt  to  discharge 
the  professional  duties  of  caring  for  and  treating 
criminals.  Popular  sentiment  now  revolts  with  a 


56  The  Science  of  Penology 


just  indignation  at  the  idea  of  committing  the  in- 
sane to  the  care  of  any  one  but  a  professional  alien- 
ist, or  the  sick  or  injured  to  any  one  but  a  doctor  ; 
it  must  also  be  taught  to  compel  the  selection  of 
competent  and  qualified  managers  of  its  convicts. 

It  is  a  law  of  our  science  that  convicts  in  confine- 
ment need,  and  are  entitled  to  receive  from  the  power 
which  confines  them,  skilful  professional  treatment. 

The  first  examination  of  the  convict  by  the  expert 
into  whose  charge  he  has  been  committed  will  be  for 
the  purpose  of  determining  the  category  to  which 
he  belongs.  The  effort  of  the  convict  will  be  to  de- 
ceive his  examiner.  This  is  universally  the  case. 
The  convict  will  have  had  the  most  experience  in 
deception  ;  the  expert  requires  superior  ability  and 
experience  with  criminals  in  order  to  obtain  his  ob- 
jects. If  the  convict  is  insane,  an  expert  alienist 
should  detect  this  in  a  short  interview,  and  remand 
the  patient  to  the  Asylum  for  the  Insane  Criminals. 
Neither  real  nor/eigned  insanity  can  long  be  undis- 
covered by  the  carefully  observing  alienist. 

If  the  convict  is  not  of  the  class  of  Criminal  Mad- 
men, the  next  inquiry  will  be  whether  he  belongs  to 
the  category  of  Instinctive  or  Habitual  Criminals ; 
for  these  will  require  as  special  and  peculiar  treat- 
ment as  the  first  named.  The  most  instructive  in- 
formation on  this  point  will  be  derived  from  the 
previous  history  of  the  case ;  the  circumstances 
of  the  crime  of  which  he  is  convicted,  his  social 
condition,  parentage,  occupation,  and  youthful 
environment. 


Detection  and  Identification  57 


Next  in  importance  is  the  physical  examination 
for  the  discovery  of  any  of  the  well-known  stigmata 
of  abnormality, — malformations,  asymmetry,  tattoo- 
ing, debility,  disease,  birth-marks  ;  as  well  as  scars, 
height,  weight,  and  various  measurements,  which 
should  be  made  by  a  trained  medical  expert. 
Afterwards  come  the  various  tests  of  the  mental 
faculties :  intelligence,  education,  and  intellectual 
activity  or  sluggishness,  and  nervous  sensitiveness. 
Finally  the  scrutiny  of  the  moral  consciousness,  and 
the  degree  of  depravity  of  the  moral  nature.  Con- 
ducted with  proper  care  and  skill,  these  investiga- 
tions will  determine  whether  the  patient  is  to  be 
assigned  to  one  of  the  above  categories,  or  to  be 
relegated  to  that  of  the  Single  Offender. 

If  the  convict  appears  to  belong  to  the  large 
category  of  Single  Offenders,  a  more  protracted 
study  of  the  disease  and  character  will  be  required 
than  is  possible  in  any  short  examination.  Time 
and  patient  watching  under  continual  and  rigid  tests 
will  be  necessary  to  develop  the  hidden  and  ob- 
scure nature  of  the  malady  which  has  only  once 
broken  out  into  active  virulence  ;  and  to  prescribe 
the  remedies  which  are  best  adapted  to  its  restraint 
and  cure.  Every  convict  seems  to  know  instinc- 
tively that  the  more  perfectly  and  the  longer  he 
can  conceal  and  obscure  the  chronic  and  more 
serious  aspects  of  his  disease,  the  better  will  be 
his  chance  of  an  early  release.  Prison  discipline, 
indeed,  is  largely  based  upon  the  principle  of 
shortening  the  time  of  sentence  in  proportion  to 


58  The  Science  of  Penology 


good  behavior.  It  is  therefore  essential  to  disci- 
pline itself  that  the  character  of  the  disease  should 
be  correctly  diagnosed.  But  the  vital  importance 
of  an  accurate  determination  of  its  nature  is  to 
prevent  the  return  of  the  criminal  to  social  freedom 
during  a  simulated  or  temporary  convalescence.  A 
permanent  and  complete  cure  of  moral  depravity  is 
the  chief  object  of  confinement.  This  is  very  diffi- 
cult, if  not  impossible,  unless  the  particular  nature 
of  the  disease  is  correctly  diagnosed  and  properly 
treated.  We  may  consider  the  principle  established 
in  penological  science,  that  a  correct  diagnosis  of  the 
nature  of  the  particular  kind  of  disease  with  which 
each  convict  is  affected  is  essential  to  his  cure. 

Under  the  limited  time-sentences  of  existing 
criminal  codes,  which  involve  the  release  of  the 
convict  at  the  expiration  of  his  sentence,  a  correct 
diagnosis  of  his  disease  is  especially  of  the  utmost 
importance  to  the  welfare  of  the  society  into  which 
he  returns.  Among  the  criminal  class  at  large  must 
be  sought  and  found  the  perpetrators  of  all  crime. 
A  knowledge  of  those  who  compose  this  class,  and 
of  the  nature  of  the  malady  which  affects  each  in- 
dividual, is  the  best  guide  to  the  detection  of  the 
unknown  criminal.  The  kind  of  crime  and  the 
circumstances  of  its  perpetration  will  always  indi- 
cate the  particular  phase  of  the  disease  of  which  it 
is  the  symptom,  and  direct  the  search  to  those  who 
are  known  to  be  thus  affected.  A  knowledge  of 
the  species  of  depravity  which  an  accused  person 
has  previously  displayed  will  also  have  great  weight 


Detection  and  Identification  59 


in  the  determination  of  his  guilt  or  innocence  on  his 
trial ;  and  if  he  is  found  guilty,  should  influence  the 
nature  of  his  sentence.  It  is  evident,  then,  that  the 
supreme  function  of  the  Science  of  Penology  is 
the  discovery  of  the  infected  members  of  society  be- 
fore their  disease  has  become  an  actual  offense.  To 
cure  the  convict  and  to  prevent  his  repeating  crime 
are  the  functions  which  follow  the  overt  act  in  in- 
dividual treatment ;  the  first  line  of  defense  against 
crime  is  laid  before  crime  is  committed.  If  this 
line  can  be  maintained,  society  is  secure.  Upon 
wise  and  scientific  action  concerning  the  category 
of  "  Presumptive  Criminals  "  we  must  chiefly  rely 
for  protection.  We  may  then  formulate  another 
law  of  Penology  :  That  a  positive,  accurate,  and 
unmistakable  identification  of  every  person  infected 
with  the  disease  of  criminality  is  necessary  for  the 
protection  of  society. 

It  is  self-evident  that  the  first  and  most  difficult, 
as  well  as  the  most  necessary,  task,  is  the  detection 
and  identification  of  those  who  properly  belong  to 
this  class  of  "  Presumptive  Criminals."  As  there 
can  be  no  judicial  decision  by  law  without  the  overt 
act,  we  are  compelled  to  rely  entirely  upon  the 
declarations  of  science  for  this.  Fortunately,  the 
most  valuable  results  of  the  study  of  the  criminal 
by  biologists,  anthropologists,  and  criminologists, 
although  this  study  has  hitherto  been  devoted  to  the 
developed  disease,  have  been  the  discovery  of  causes 
and  premonitory  symptoms.  These  have  been 
incidentally  discovered  and  defined  as  positively 


60  The  Science  of  Penology 


and  certainly  as  the  character  of  the  disease 
itself.  Science  is  now  able  to  respond  satisfactorily 
to  the  demands  of  the  times,  and  to  offer  a  largely 
sufficient  substitute  for  judicial  decision  by  the 
identification  of  the  "  Presumptive  Criminal  "  before 
the  crime. 

So  recently  as  in  March,  1879,  Dr.  Alphonse 
Bertillon  invented,  and  in  1885  first  formulated 
and  published,  at  Paris  his  unerring  and  epoch- 
making  system  of  human  identification.  It  affords, 
when  carefully  and  accurately  managed,  an  abso- 
lutely infallible  method  of  identifying  and  speedily 
finding  the  description,  photograph,  name,  and 
history  of  any  person  who  has  been  previously 
recorded. 

This  system  is  based  upon  the  law  that  nature 
never  produces  two  individuals  exactly  alike  in 
every  detail.  No  two  trees  of  the  same  kind  are 
exactly  similar,  no  two  leaves  on  the  same  tree 
alike.  No  two  specimens  of  any  vegetable  growth, 
or  animal  life  but  can  be  positively  distinguished 
from  one  another  by  individual  peculiarities.  The 
utility  of  the  system  consists  in  the  ingenuity  with 
which  human  variations  are  classified  in  sub- 
divisions, which  gradually  reduce  the  number  of 
units  to  be  examined  to  so  few  that  the  one  which 
is  sought  may  be  found  in  a  very  few  minutes,  even 
among  millions,  and  that  with  absolute  certainty. 

The  term  Signalment  has  been  given  to  the 
description  of  one  whom  it  is  desired  to  identify. 
Bertillon  uses  three  kinds  of  signalment : 


Detection  and  Identification  61 


First — Anthropometrical,  based  upon  these  three 
data : 

"  /.  The  almost  absolute  immutability  of  the 
human  frame  after  the  twentieth  year  of  the  age. 

"  2.  The  extreme  diversity  of  dimension  which  the 
human  skeleton  presents  when  compared  in  different 
subjects. 

"j.  The  facility  and  precision  with  which  certain 
dimensions  of  the  skeleton  may  be  measured" 

Second — Descriptive  signalment,  which  describes 
in  words,  without  the  assistance  of  instruments ; 
and  attains  something  of  the  accuracy  of  the  an- 
thropometrical  signalment,  by  the  application  of 
Quetelet's  law  of  the  method  of  limits  of  approxi- 
mation. 

Third — Signalment  by  peculiar  marks. 

These  signalments  are  divided  into  two  classes. 
The  first  is  descriptive,  and  is  again  subdivided 
into  four,  according  (a)  to  the  nature  of  the  mark ; 
(&)  the  shape  and  curve  ;  (c)  dimensions ;  (V) 
general  directions.  The  second  requires  localiza- 
tion of  the  marks  :  (e)  locative  preposition  ;  (/") 
enumeration  of  the  parts  of  the  body  serving  as 
fixed  points,  proceeding  from  above  downward ; 
(^)  sides  and  faces  (when  the  limbs  are  in  question). 

The  formulas  adopted  for  anthropometrical  sig- 
nalment are  these  : 

f  Height  (of  a  person  standing). 

Measurementsofthe  J  Reach    (length   of  outstretched   arms, 
body  at  large.         i       from  finger-tip  to  finger-tip). 
I  Trunk  (height  of  man  sitting). 


62  The  Science  of  Penology 

I  Length  of  the  head. 
Measurements  of    J  Width  of  the  head. 

the  head.  |  Length  of  the  right  ear. 

[  Width  of  the  right  ear. 

f  Length  of  the  left  foot. 

Measurements  of    J  Length  of  the  left  middle  finger, 
the  limbs.  j  Length  of  the  left  little  finger. 

I  Length  of  the  left  forearm. 

These  signalments,  it  is  stated  in  the  author's 
edition  of  his  work  in  1893,  had  been  taken  on 
1 20,000  subjects  who  had  passed  through  the  pris- 
ons of  Paris  in  the  preceding  ten  years.  They 
were  copied  on  cards  measuring  146  mm.  in  length 
and  142  mm.  in  width,  and  were  classified  as 
follows  :  Women  to  the  number  of  20,000  were 
classed  by  themselves.  From  the  remaining 
100,000  masculine  signalments,  10,000  minors  un- 
der twenty-one  years  were  deducted  for  a  special 
classification.  The  90,000  signalments  of  mascu- 
line adults  were  otherwise  distributed.  I  will 
describe  the  method  practised  in  America,  which 
differs  only  in  detail  of  measurements  from  that 
given  in  the  book.  The  cards  are  distributed  in  a 
case  of  three  rows  of  drawers,  three  wide.  The 
first  division  is  according  to  head  length.  There 
are  three  primary  subdivisions,  short,  medium, 
and  long ;  each  comprising  about  30,000  cards. 
The  medium  is  in  the  middle  row,  and  includes 
all  between  187  and  193  mm.  ;  which  measurement 
it  was  found  would  include  about  one  third  of  the 
total.  The  first,  containing  those  187  mm.  long 


Detection  and  Identification  63 


and  all  below,  is  marked  A  — 187;  the  third 
contains  all  194  mm.  long,  or  more.  These  figures 
are  marked  in  the  first  line  of  the  indicating  card 
outside  the  front  of  the  drawer.  Each  of  these 
three  masses  of  30,000  is  subdivided  into  three 
groups  of  10,000  each,  according  as  the  width  of 
the  head  is  narrow,  medium,  or  broad. 

These  are  again  divided  into  three  smaller 
groups  of  about  3300  each,  according  as  the 
length  of  the  middle  finger  of  the  left  hand  is 
"  Small,"  "  Medium,"  or  "  Large."  Each  of  these 
is  separated  into  three  groups  of  noo  each,  ac- 
cording as  the  length  of  the  left  foot  is  "  Small," 
"  Medium,"  or  "  Large."  Then  come  three  sub- 
divisions according  to  the  length  of  the  forearm, 
reducing  the  number  in  each  to  less  than  400. 

Variations  in  height  divide  these  last  into  three, 
of  about  130  signalments  ;  which  are  again  sub- 
divided into  three  of  about  60  each,  by  variations 
in  the  length  of  the  left  little  finger  ;  which  are 
then  reduced  to  classes  of  about  12,  according 
to  the  color  of  the  eye.  Thus  the  collection  of 
90,000  signalments  is  divided  into  groups  of 
12  ;  from  which  a  similar  set  of  signs  can  be 
selected,  if  it  is  among  the  lot,  in  a  moment.  The 
order  of  classification  is  that  of  placing  at  the  be- 
ginning those  measures  which  have  the  greatest 
signalitic  power.  A  comparison  of  the  numerical 
signalments  on  the  cards  classified  in  the  same  final 
compartment  shows  that  it  is  well-nigh  impossible 
to  find  two  signalments  exactly  alike ;  so  that  the 


64  The  Science  of  Penology 


agreement  of  two  sets  and  figures  at  last  constitutes 
a  quasi-certitude  of  the  identity  of  the  two  per- 
sons described ;  the  one  in  the  case,  and  the  one 
by  whose  measures  the  search  has  been  made. 

This  quasi-certitude  is  rendered  absolute  by  the 
correspondence  of  the  headings  of  the  "  Descrip- 
tive signalment,"  and  those  of  the  "  Signalment 
by  peculiar  marks."  The  immutability  of  the  shape 
of  the  ear  throughout  life,  and  the  great  variety  of 
configuration  which  it  presents,  render  it  impossi- 
ble to  discover  two  ears  alike  on  different  persons, 
—  except  possibly  in  the  case  of  twins, —  a  fact  now 
established  by  twenty  years  of  experiment,  and 
make  it  practicable  to  identify  persons  whose  meas- 
urements and  description  of  that  organ  were  taken 
as  early  as  at  ten  years  of  age.  The  Bertillon 
system,  therefore,  is  a  means  of  identifying  the 
class  of  "  Presumptive  Criminals,"  as  well  as  the 
actual.  It  has  been  adopted  in  most  of  the  civil- 
ized countries  of  the  world  ;  either  officially,  or  in 
their  principal  prisons.  It  was  introduced  into  the 
United  States  by  Maj.  R.  W.  McClaury  in  1887, 
and  shortly  afterwards  endorsed  by  the  United 
States  and  Canada  Wardens '  Association,  and  its 
adoption  urged  by  the  National  Prison  Association 
in  1899  and  I9°°-1  It  is  from  Major  McClaury's 
edition  of  Dr.  Bertillon's  book,  entitled  The  Ber- 
tillon System  of  Identification,  that  this  con- 
densed outline  has  been  mostly  taken.  To  this 

1  See  Reportof  the  Hartford  Prison  Congress,  1899,  p.  244,  and  that  of 
1900. 


Detection  and  Identification  65 


valuable  treatise  the  reader  is  referred  for  the  full 
details  of  its  operation. 

The  great  advantages  which  the  Bertillon  system 
affords  in  the  detection  and  identification  of  persons 
accused  of  crime,  as  well  as  in  cases  of  fictitious 
personification  and  of  mistaken  identity  ;  in  the  pro- 
tection of  innocent  persons  charged  with  crime  ;  in 
insuring  the  conviction  of  the  guilty  ;  and  in  distin- 
guishing between  new  and  old  offenders,  have  made 
it  an  absolutely  necessary  adjunct  to  the  scientific 
administration  of  criminal  law.  It  is  equally  useful 
in  detection  and  arrest ;  in  trial  and  conviction  ;  in 
the  determination  of  the  sentence  ;  and  in  the  reg- 
ulation of  the  treatment  of  the  prisoner  in  confine- 
ment. It  is  no  less  valuable  as  a  restraint  upon 
criminality ;  for  once  it  is  known  to  the  public  that 
however  a  culprit  may  disguise  himself,  or  wherever 
he  may  flee,  his  identity  can  surely  be  proved,  men 
will  be  more  apprehensive  of  incurring  the  penalties 
of  the  law.  It  is  apparent  that  the  Bertillon  sys- 
tem has  direct  influence  on  the  criminal  class.  It 
has  caused  the  migration  of  the  men  of  this  class  to 
other  States  in  which  they  can  more  safely  pursue 
their  vocation.1 

Scientific  Penology  imperatively  requires  the  es- 
tablishment by  the  National  Government  of  a  central 
bureau  in  Washington  for  the  collection  of  the  sig- 
nalments  of  all  the  criminal  class  in  North  America  ; 
with  legal  provisions  imposing  upon  all  magistrates 
and  police  departments  the  duty  of  filing  the 

1  Report  of  Superintendent  of  Prisons  in  New  York  for  i8g8,  p.  28. 


66  The  Science  of  Penology 

signalments  of  all  arrested  persons,  and  the  privilege 
of  an  easy  reference  to  the  records.1  This  was  also 
recommended  by  the  National  Association  of  the 
Chiefs  of  Police  at  Atlanta,  Ga.,  May  12,  1896. 
Arrangements  were  made  at  their  convention  in 
May,  1900,  to  accomplish  this.  Such  a  national 
identification  bureau  should  include  the  signalments 
of  the  inmates  of  all  the  public  penal  and  charitable 
institutions  ;  and  especially  of  institutions  for  juve- 
nile defectives,  delinquents,  orphans,  illegitimate  and 
neglected  children,  at  ten  years  of  age,  by  the  de- 
scriptive signalment  relating  to  the  ear.  The  util- 
ity of  such  an  institution  was  notably  illustrated  by 
the  identification  of  the  anarchist  murderer  of  King 
Humbert  by  the  Bertillon  measurement  after  all 
other  efforts  had  failed,  and  the  discovery  of  his 
history  and  connection  with  a  nest  of  social  vipers 
in  New  Jersey  who  can  now  be  watched. 

In  time,  when  popular  intelligence  recognizes  the 
importance  and  value  of  such  an  enrolment,  the  Cen- 
sus Bureau  should  include  in  its  enumeration  the 
signalment  of  every  inhabitant  of  ten  years  of  age  or 
over.  When  this  has  been  once  accomplished  the  de- 
tection and  identification  of  the  whole  criminal  class 
in  the  country  will  be  easily  effected.  The  investi- 
gations of  coroners,  the  identification  of  the  unknown 
dead,  the  prosecution  of  claims  for  life  insurance, 
personal  permits,  passports,  the  payment  of  drafts, 
checks,  and  money  orders,  and  all  documents  re- 
quiring personal  identification  would  be  greatly 

1  See  Report  of  National  Prison  Association,   1896,  p.  114. 


Detection  and  Identification  67 


simplified,  facilitated,  and  protected.  It  would  thus 
become  possible  to  find  any  person  whenever  it 
might  be  desirable  for  his  own  good  or  that  of 
others  ;  mysterious  disappearances  would  decrease, 
crime  be  greatly  suppressed,  elections  purified,  mis- 
understandings obviated,  immigration  laws  more 
effectively  enforced,  much  injustice  prevented,  and 
business  relations  greatly  facilitated.  As  the  sys- 
tem was  extended  throughout  the  world  these  ad- 
vantages would  increase.1 

The  Bertillon  method  of  identification  is  a  sys- 
tem. It  is  perfect  and  reliable  when  used  as  a 
complete  system,  and  just  in  proportion  to  the 
completeness  of  the  use  of  the  system  is  its  practical 
utility  and  value.  To  secure  the  protection  it 
offers,  requires  first  of  all  a  central  bureau,  and 
then  the  co-operation  of  all  the  social  defensive 
forces  of  the  country.  No  adequate  defense  against 
crime  can  be  conducted  without  such  a  system. 
The  national  bureau  should  be  the  headquarters  of 
the  commander-in-chief  of  operations  against  the 
criminal  class,  to  which  reports  should  come,  not 
only  from  all  parts  of  the  United  States,  but 

1  Dr.  Bertillon  reports  that  the  number  of  descriptions  of  individuals 
which  had  been  taken  and  noted  at  Paris,  up  to  the  3ist  of  December,  1899, 
was  198,884.  Of  these  166,543  were  French,  and  32,341  were  foreigners. 
There  had  been  noted  at  the  different  prisons  of  France  and  compiled  at 
the  Bureau  of  Legal  Identification  from  the  1st  of  January,  1894,  to  the  3ist 
of  December,  1899,  460.  149  descriptions  or  signalments. 

The  number  of  identifications  made    (      In  Paris 12,210 

from  individual  measurements   up  to  •<      In    the   provinces    and 

3ist  December,  1899,  had  been (          among  foreigners. . . .    1,441 

A  total  of I3.65I 


68  The  Science  of  Penology 


mutual  interests  would  secure  them  also  from 
neighboring  countries,  which  would  derive  recip- 
rocal benefits  from  it.  Modern  facilities  of  rapid 
travel  from  place  to  place  by  railroads,  and  inter- 
communication by  telegraphs  and  telephones,  have 
contributed  rather  more  to  the  successful  perpetra- 
tion of  crime  and  the  escape  of  the  criminal  than 
to  the  protection  of  society,  because  the  Govern- 
ment has  so  far  failed  to  properly  take  advantage 
of  the  conveniences  of  which  the  criminal  avails 
himself.  Crimes  are  planned  in  one  place,  crimi- 
nals brought  from  a  distance  to  perpetrate  them, 
and  hurried  home  again  before  their  absence  is 
discovered,  while  the  local  detectives  are  confused 
by  the  alibis  of  the  local  suspects.  A  central  direc- 
tion of  operations  which  covers  the  whole  field  is  an 
absolute  necessity  of  social  defense  under  present 
conditions. 

Another  important  reason  for  the  establishment 
of  such  a  bureau  is  the  fact  that  56.81  per  cent,  of 
our  prison  population  in  1890  was  of  foreign  par- 
entage, although  but  32.93  per  cent,  of  our  popula- 
tion was  of  foreign  parentage.  Half  of  these 
prisoners  were  not  naturalized,  and  one  fifth  of  them 
unable  to  speak  the  English  language.1  This  pro- 
portion should  be  larger  still  by  the  Twelfth  Census, 
on  account  of  the  increased  immigration  of  Italians, 
Slavs,  Magyars,  and  Russians  difficult  of  identifi- 
cation, unless  the  very  great  difficulty  of  arresting 

1  Report  of  Crime,  Pauperism,  and  Benevolence  in  the  United  States,  1890, 
p.  149- 


Detection  and  Identification  69 


and  convicting  criminals  among  these  foreigners  in- 
terferes with  their  numerical  representation  in 
prison.  A  perusal  of  the  criminal  dockets  of  courts 
held  in  communities  where  they  settle  reveals  an 
almost  complete  monopoly  by  foreign  names.  A 
national  bureau  of  identification  could  secure  from 
abroad  the  signalments  of  foreign  criminals,  cause 
all  immigrants  to  be  measured,  and,  if  identified 
as  criminals,  returned  at  once  whence  they  came. 
Thus  might  be  checked  the  influx  of  foreign  crimi- 
nals which  has  so  long  afflicted  our  people.  One 
great  cause  of  this  influx  has  doubtless  been  the 
adoption  of  the  Bertillon  system  in  the  countries 
from  whence  they  have  come,  which  has  compelled 
them  to  seek  seclusion  amid  our  teeming  millions. 
It  is  essential  to  the  protection  of  our  people 
from  foreign  criminality,  insanity,  pauperism,  and 
contagious  disease,  that  all  immigrants  should  be 
required  to  bring  signalistic  passports  certifying  to 
their  good  character  and  sound  physical  and  mental 
health,  verified  by  responsible  officials  at  the  place 
of  their  former  residence,  and  by  the  nearest  for- 
eign representative  of  our  Government.  These 
passports  should  be  tested  by  the  signalments  of 
the  central  bureau  which  have  been  made  from  the 
nationality  .of  the  immigrant.  The  value  of  such 
an  examination  of  immigrants  would  far  exceed  its 
cost  or  inconvenience,  not  only  for  the  restriction 
of  crime,  but  the  protection  of  citizenship  and  the 
rights  of  suffrage.  Our  immigration  laws  should 
prescribe  the  return  to  his  native  land  of  every 


70  The  Science  of  Penology 


immigrant  who  is  convicted  of  crime  or  becomes  a 
public  charge  within  five  years  of  his  landing. 

As  the  direct  contest  with  crime  must  be  waged 
by  the  individual  States,  a  co-operative  system  re- 
quires that  each  State  should  have  its  corps  com- 
mander, through  whom  communications  should  be 
maintained  with  the  national  headquarters.  This 
should  be  a  State  commissioner  of  prisons,  with 
power  to  enforce  all  laws  and  regulations  concern- 
ing convicts,  to  supervise  all  penal  and  reformatory 
institutions,  industrial  schools,  all  protective  and 
detective  and  penal  agencies.  It  should  be  the 
State  commissioner's  special  duty  to  secure  as 
rapidly  as  possible  the  identification  and  local- 
ization of  all  members  of  the  criminal  class  in  the 
State,  and  to  transmit  their  signalments  to  national 
headquarters.  The  national  and  State  commis- 
sioners should  hold  their  offices  during  satisfactory 
behavior,  and  provision  should  be  made  for  their 
retirement  upon  pensions  when  no  longer  able  to 
discharge  the  duties  of  their  office. 

The  establishment  of  such  a  system,  together 
with  provision  for  the  signalment  of  every  arrested 
person,  would  in  a  very  short  period  secure  the 
complete  registry  of  every  member  of  the  criminal 
class  on  the  continent.  The  knowledge  by  every 
criminally  disposed  person  that  he,  with  his  previous 
history,  was  positively  known  to  the  authorities 
would  not  only  operate  as  a  very  great  restraint 
upon  crime,  but  facilitate  the  detection  and  arrest 
of  the  perpetrators  in  the  most  effective  manner 


Detection  and  Identification  71 


possible.  This  is  the  most  important  tactical  ad- 
vantage of  any  general  system  of  defense.  The 
great  advantages  which  would  naturally  follow  its 
adoption  would  be  the  co-operation  which  could  be 
secured  between  the  different  States ;  the  infor- 
mation which  would  be  gathered  concerning  the 
special  measures  used  in  various  States,  and  which 
could  be  adopted  by  all  as  they  proved  to  be 
beneficial ;  the  accumulation  of  scientific  knowl- 
edge as  a  foundation  for  future  operations  in  lab- 
oratories of  criminology  ;  and  the  restraint  of  the 
raids  of  criminals  from  one  State  upon  the  people 
of  other  States.  Thirty-two  per  cent,  of  the  77,980 
arrests  made  in  all  but  nine  of  the  cities  of  Massa- 
chusetts in  1 898  were  of  non-residents  of  the  places 
where  they  were  arrested.1  A  large  proportion  of 
the  graver  crimes  are  committed  by  raiders  from  a 
distance. 

1  Massachusetts  Prison  Association  Bulletin  No.  12,  p.  II. 


CHAPTER  V. 

CRIMINAL   CODES. 

Origin  of  Criminal  Codes — Unscientific  Development  of  them  —  Con- 
sequent Futility,  Shown  by  Recidivism — Theory  on  which  they  are 
Founded  and  of  Severe  Penalties,  False — Theory  of  Punishment 
Inutile — Abuse  of  Legal  Privileges — Of  Presumption  of  Innocence 
— Corruption  of  Juries  — Technicalities  Perverted  to  Delay — Security 
from  Second  Jeopardy — Evils  of  Judicial  Discretion — Procuration 
of  Perjury — Irrational  Incongruity  of  Penalties — Murders  and 
Lynchings — The  Single  Sentence — Criminal  Madmen — Instinctive 
and  Habitual  Criminals — Single  Offenders — The  State  the  Only  Legal 
Administrator  of  Criminal  Laws  —  Drunkards  —  Prostitutes  —  Cate- 
gory of  Criminality  Disclosed  at  Trial — The  Indeterminate  Sentence 
— The  Real  Province  of  Criminal  Codes — Necessity  for  a  New  Code 
— Proposed  System  of  Penalties — State  Administration  of  Reforma- 
tory and  Penal  Prisons — The  Pardoning  Power. 

OUR  criminal  laws  have  their  source  in  that  im- 
pulse to  retaliate  which  is  derived  from  the 
universal  and  fundamental  instinct  of  self-preser- 
vation, and  still  survives  on  the  parent  stock  in  the 
human  heart.  It  is  as  natural  to  strike  back  as  it 
is  to  eat.  The  lex  talionis  is  the  first  and  most 
ancient  of  all  human  laws.  Out  Oi  this  instinctive 
disposition  to  retaliate  or  revenge  injury,  when  com- 
munities began  to  unite  for  self-protection,  grew 
first  the  idea  of  sanctuary,  or  place  of  temporary 
refuge,  and  next  the  plan  of  compensation  and 
retribution.  These  laws  have  descended  to  us 
modified  by  the  English  development  of  Teutonic 

72 


Criminal  Codes  73 


practices  and  maxims.  Society,  or  the  State,  having 
assumed  the  right  to  inflict  punishment  and  impose 
retribution  for  injury,  the  individual  units  lost  this 
right,  and  it  became  incumbent  on  the  State  to 
prevent  private  revenge,  and  even  the  exercise  of 
private  judgment  concerning  guilt  or  innocence. 

The  original  lex  talionis  was  the  first  executed 
by  the  community  :  life  for  life,  eye  for  eye,  tooth 
for  tooth.  Then  the  more  humane  principles  of 
retribution  and  compensation  began  to  grow. 
Next,  in  the  desire  to  deter  from  crime,  penalties 
were  made  as  horrible  as  possible.  Inhuman  tor- 
tures, atrocious  executions,  imprisonment  for  life  in 
dungeons,  in  chains,  with  bread  and  water  to  pro- 
long suffering,  were  adopted  as  punishments.  Hu- 
man ingenuity  was  taxed  to  invent  cruelties. 
When  mankind  at  last  revolted  from  these  atroci- 
ties, satisfied  of  their  inutility  as  deterrents,  the 
attempt  began  to  measure  and  weigh  crimes,  and 
balance  them  with  penalties  proportionate  to  their 
sinfulness  or  immorality.  Imprisonment  and  fines 
were  substituted  for  execution  and  torture.  As  a 
new  crime  developed  in  the  changed  conditions  of 
existence,  a  new  penalty  was  enacted  to  meet  it. 
So  the  criminal  codes  of  States  have  grown  up  by  ad- 
ditions and  accretions,  based  upon  the  primitive 
idea  of  punishment,  niade  according  to  the  more  or 
less  intelligent  idea  of  the  legislator  of  the  time. 
Ex-Governor  John  W.  Griggs,  afterwards  Attorney- 
General  of  the  United  States,  said  at  the  meeting 
of  the  American  Bar  Association  in  August,  1897, 


74  The  Science  of  Penology 

at  Cleveland,  Ohio :  "  An  extended  experience  of 
personal  participation  in  legislation  according  to 
the  American  system  (which  we  think  is  the  best 
known)  has  led  me  to  believe  that  there  is  no  one 
thing  in  all  the  departments  of  government  or  busi- 
ness that  is  carried  on  with  less  scientific  or  orderly 
method  than  the  making  of  laws."  This  is  particu- 
larly true  of  the  making  of  criminal  laws.  Only 
one  idea  has  governed  their  formulation,  that 
of  providing  a  fixed  penalty  for  a  stated  crime. 
This  idea  has  prevailed  and  controlled  legislation 
to  the  present  time,  notwithstanding  the  constant 
demonstration  of  its  utter  inefficiency  in  the  pro- 
tection of  society  from  crime.  The  criminal  class 
flourishes  undiminished  and  unterrified,  and  crime 
is  not  repressed  by  all  the  modern  multiplication  of 
laws,  officials,  agencies,  and  prisons.  It  has  be- 
come manifest  that  our  criminal  codes  are  a  failure. 
They  do  not  accomplish  their  object.  Statistics 
prove  conclusively  that  there  is  no  decrease  of 
crime  in  recent  years,  if  they  do  not  demonstrate  a 
positive  increase.1  The  fault  must  be  either  in  our 
codes,  or  in  their  execution. 

That  the  fault  is  not  chiefly  one  of  remissness  in 
detection  and  arrest  is  indicated  by  the  constant 
re-arrest  and  reconviction  of  criminals,  and  the 
large  proportion  of  recidivists  always  temporarily 
in  confinement,  estimated  to  be  over  50  per  cent, 
of  all  convicts 2 ;  as  well  as  by  the  small  proportion 
which  the  number  convicted  of  crime  bears  to  the 

'See  Drahms,   The  Criminal,  pp.  240  etseq.  8 Ibid.,  p.  227 


Criminal  Codes  75 


number  arrested  for  crime.  Of  the  72,727  pris- 
oners who  were  either  in  the  county  jails,  work- 
houses, or  houses  of  correction  in  the  State  of 
Pennsylvania  September  30,  1897,  or  were  com- 
mitted to  them  during  the  following  twelve  months, 
only  8  per  cent,  were  convicted  and  sentenced.1 
Of  the  99,336  persons  arrested  in  Massachusetts 
during  1898,  29,978  were  committed  to  prisons,  and 
more  than  16,000  of  these  were  held  for  trifling  of- 
fenses and  inability  to  pay  small  fines.  The  re- 
maining 13,978  commitments  were  but  14  per 
cent,  of  the  number  arrested.  In  the  quarter 
ending  December  31,  1899,  the  New  York  City 
police  made  32,264  arrests,  of  which  2657  were  for 
principal  felonies.  Of  these  cases  1612  were  dis- 
posed of,  but  there  were  only  394,  or  24.4  per  cent, 
of  convictions.  The  total  number  of  convictions 
during  1899  in  the  United  States  for  felonies  was 
only  one  of  every  33.1+  of  the  total  arrests.2  Pro- 
fessor Ferri  says  :  "  Seventy  per  cent,  of  discovered 
crimes  go  unpunished." ;  The  popular  belief  that 
but  a  small  percentage  of  the  perpetrators  of  crime 
is  punished  is  responsible  for  much  of  the  criminal- 
ity in  society  ;  for  if  every  one  believed  that  imme- 
diate arrest,  conviction,  and  a  definite  sentence 
were  absolutely  certain  to  follow  the  commission  of 
crime  the  laws  would  be  most  effectively  deterrent. 
The  uncertainty  of  conviction,  and  the  doubt  con- 
cerning the  measure  of  the  penalty,  added  to  the 

1  Report  Board  of  Public  Charities  for  1898,  p.  179. 
8  See  Appendix  A.  3  Criminal  Sociology,  p.  223. 


76  The  Science  of  Penology 


expectation  of  escaping  arrest,  relieve  the  fear  of 
the  designing  criminal,  and  excite  hopes  of  immu- 
nity more  powerful  than  the  dread  of  punishment. 
The  failure  of  our  criminal  codes  is  to  be  attributed 
to  inherent  rather  than  executive  faults,  however 
grave  the  latter  may  be.  The  theory  upon  which 
they  have  been  formulated  is  a  theory  evolved  out 
of  and  adapted  to  savage  human  relations  and  not 
to  our  higher  civilization.  The  death  penalty  in 
its  most  horrible  and  repulsive  forms  was  tried  in 
England  upon  one  hundred  and  sixty  kinds  of  crime, 
and  is  now  abandoned  as  useless  except  for  a  few 
of  the  gravest.  It  is  reported  that  seventy  thou- 
sand persons  were  executed  during  the  single  reign 
of  Henry  VIII.,  A.D.  1 509-1 547. J  The  attempt 
to  exterminate  criminals  by  death  proved  a  horrible 
failure  there,  as  it  has  in  China,  where  the  death 
penalty  is  still  relied  upon.  Lynchings  attended 
with  the  most  savage  cruelties  have  signally  failed 
in  the  South,  in  our  times,  to  prevent  the  crimes 
which  they  avenge.  Our  penal  statutes  exhibit  al- 
most every  imaginable  vagary  in  the  severity  and 
kind  of  punishment  which  has  been  apportioned  to 
specific  crimes.  When  the  punishment  was  most 
horrible  crime  was  most  prevalent,  and  life  and 
property  least  secure,  until  it  became  an  adage  that 
"  crime  thrives  upon  severe  penalties."  The  crimi- 
nal disposition  is  by  nature  oblivious  of  remote 
consequences  in  the  pursuit  of  present  gratification. 
The  fear  of  the  law  is  not  before  its  eyes.  It  takes 

1  The  Criminal,  Drahms,  p.  333. 


Criminal  Codes  77 


little  thought  of  to-morrow  in  the  enjoyment  of  to- 
day. The  whole  history  of  social  dealing  with 
crime,  from  the  beginning  to  the  present,  proves 
beyond  doubt  that  the  theory  of  severe  penalties 
for  the  restriction  of  crime  is  false,  and  as  obsolete 
as  the  rack  or  the  headsman's  axe.  Scientific  Pe- 
nology proclaims  it  as  law,  that  the  fear  of  punish- 
ment does  not  restrain  crime. 

The  theory  of  punishment  involves  the  necessity 
of  awaiting  the  crime  before  the  law  can  operate  ; 
which  is  fatal  to  every  preventive  purpose  in  the 
codes.  Our  criminal  laws  can  take  cognizance  only 
of  the  overt  act.  Without  the  act  there  is  no 
crime  to  punish.  This  necessary  limitation  to  the 
discovered  culpable  deed,  the  crime  which  has  been 
committed,  completely  paralyzes  the  main  purpose 
of  the  laws,  which  is  the  protection  of  society  from 
crime.  A  law  which  is  dead  or  dormant  until  the 
damage  is  done  is  better  buried  than  executed.  It 
is  a  mere  legislative  locking  of  the  stable  door  after 
the  horse  is  stolen.  This  confinement  of  the  codes 
to  the  overt  act  constitutes  a  second  insuperable 
cause  of  their  failure. 

Because  of  the  terrible  punishments  imposed 
upon  criminals  in  early  times  when  life  was  lightly 
taken  for  slight  offenses,  there  sprang  up  naturally 
many  legal  safeguards  for  innocent  accused  persons, 
which  have  retained  their  force  in  the  administra- 
tion of  criminal  law  through  all  the  changes  of 
penalties,  and  of  the  practice  of  courts  in  trials, 
until  now  under  modern  conditions  they  tend  more 


/8  The  Science  of  Penology 


to  retard  or  defeat  the  ends  of  justice  than  to  pro- 
tect the  rights  of  the  accused.  The  attorneys  of 
the  prisoner,  in  their  ardor  to  acquire  a  reputation 
for  ability  and  skill  in  defense,  have  become  accus- 
tomed to  devote  their  energies  to  securing  the  ac- 
quittal of  their  clients,  even  when  they  know  them 
to  be  guilty.  They  do  this  by  stretching  and  mag- 
nifying the  legal  technicalities  intended  for  the 
protection  of  the  innocent  until  they  subvert  much 
of  the  protection  which  the  laws  might  afford  to 
society.  Of  the  persons  who  are  actually  brought 
to  trial  for  crimes,  probably  the  large  majority  are 
guilty.1  But  of  those  tried  in  our  courts  a  large 
/  majority  are  acquitted.  (The  graver  the  crime  and 
S  the  heavier  the  penalty,  the  more  difficult  has 
\  become  the  conviction.] 

One  of  the  most  notable  instances  of  this  ten- 
f  dency  is  the  strained  application  made  of  the  "  pre- 
sumption of  innocence "  in  favor  of  the  accused. 
That  every  man  is  to  be  assumed  innocent  until 
proved  guilty,  is  a  cardinal  principle  of  Anglo- 
Saxon  common  law,  a  bulwark  of  free  institutions. 
It  is  founded  on  the  fact  that  men  in  general  do  not 
commit  crime,  just  as  the  presumption  of  sanity  is 
founded  on  the  fact  that  men  in  general  are  sane. 
It  distinguishes  democratic  criminal  law  from  that 
of  autocratic  or  oligarchic  States,  which  assumes  the 
guilt  of  the  accused  until  he  proves  his  innocence. 
The  latter  assumption  has  always  been  the  great 
instrument  of  tyrants  for  disposing  of  obnoxious 

1  Thayer  on  Evidence  at  Common  Law,  p.  562. 


Criminal  Codes  79 


subjects,  or  for  plunder.  It  permits  arrest,  indefinite 
imprisonment  without  trial,  and  entire  sequestration 
from  counsel  or  friends  ;  the  horrors  and  death 
"  incomunecado  "  of  Spain.  But  when  this  natural 
presumption  of  every  man's  innocence  is  urged  upon 
a  jury  as  evidence  of  the  innocence  of  an  accused 
person  which  must  be  overthrown,  and  great  stress 
is  laid  upon  what  constitutes  that  "  reasonable 
doubt "  of  guilt  which  must  be  entirely  removed 
from  the  mind  before  a  verdict  of  guilty  can  be 
rendered,  it  becomes  very  difficult  to  convict  for 
serious  crimes.  This  strained  interpretation  of  the 
presumption  of  innocence  opens  a  wide  door  for  the 
escape  of  any  criminal  who  can  influence  some  of 
the  jury.  As  accepted  by  the  courts  it  involves  a 
contradiction,  for  it  presumes  the  accused  innocent 
while  it  assumes  his  guilt  and  proceeds  to  over- 
throw the  presumption.  The  object  of  trial  is  to 
disclose  the  facts,  not  to  shield  the  guilty. 

The  abuse  and  corruption  of  the  sacred  and  ines- 
timable privilege  of  trial  by  jury  by  unscrupulous 
lawyers  and  politicians  has  conduced  much  to  the 
failure  of  criminal  laws.  The  manipulation  of  the 
tale  lists  put  into  the. wheel  for  drawing  so  that 
there  may  be  drawn  on  every  jury  persons  who  can 
be  easily  influenced  by  fair  or  foul  means  in  favor  of 
the  criminal  ;  the  committal  of  questions  of  great 
importance  to  the  decision  of  ignorant  and  inca- 
pable jurors  ;  the  growth  in  cities  of  a  class  of  pro- 
fessional jurors  who  secure  by  political  influence 
their  draft  into  the  box  in  order  to  obtain  the  daily 


8o  The  Science  of  Penology 


fee  ;  the  use  of  bribes  of  various  kinds  to  "  hang  " 
a  jury  in  order  to  prevent  conviction  ;  the  frequent 
granting  to  the  jury  of  the  power  to  fix  the  penalty, 
as  well  as  to  determine  the  guilt  or  innocence  of  the 
accused ;  the  maudlin  and  inconsiderate  public 
sympathy  often  displayed  for  heinous  criminals  who 
have  incurred  the  danger  of  severe  punishment, 
which  overshadows  the  crime  and  the  damage  done 
to  society,  and  which  influences  the  minds  of  the 
trial  jury  in  favor  of  the  accused, — all  of  these  have 
so  discredited  jury  trials  that  many  persons  openly 
advocate  their  abandonment.  It  is  the  general 
opinion  of  lawyers  who  practise  before  juries  that  it 
is  impossible  to  predict  the  verdict  of  a  jury  from 
a  knowledge  of  the  facts  presented  ;  that  the  mind  of 
a  jury  is  as  uncertain  as  the  weather. 

The  antiquated  and  technical  practice  which  rules 
the  conduct  of  trials  enables  counsel  to  delay  and 
prolong  them  until  the  public  has  lost  interest  in 
the  crime.  Witnesses  disappear,  evidence  is  lost, 
and  acquittal  is  secured  almost  by  default.  The 
obstacles  to  the  administration  of  justice  have  been 
increased  by  recent  legislation  which  has  added 
rights  of  appeal  for  a  new  trial  ;  of  appeal  to  a 
higher  court  on  account  of  technical  "  errors  "  by  the 
trial  judge  ;  of  stay  of  execution  ;  of  appeal  for 
pardon  ;  until  the  escape  of  the  criminal  from  the 
meshes  of  the  law  has  become  more  certain  than 
his  punishment.1 

1  "Criminal  Jurisprudence,"  Gen.  I.  J.  Wistar,  Lippincotfs  Magazine, 
June, 1896. 


Criminal  Codes  81 


"  Our  administration  of  the  criminal  law  to-day,  in  a  period 
when  the  substantive  law  is  merciful,  is  badly  enfeebled  by  a 
continuance  of  some  rules  and  practices  which  should  have 
disappeared  with  the  cruel  laws  they  were  designed  to  miti- 
gate. I  may  refer  to  the  refusal  of  new  trials  to  the  govern- 
ment in  some  classes  of  cases,  to  the  absurd  extreme  to  which 
the  rule  about  confessions  in  evidence  is  sometimes  pressed, 
to  the  strained  interpretation  of  the  prohibition  of  ex  post  facto 
laws  and  of  self-crimination,  to  the  continuation  of  technical- 
ities of  criminal  procedure  and  practice  which  have  lost  their 
reason  for  existence,  and  to  a  superstitious  vigor  in  enforcing 
these  which  still  shows  itself.  In  following  English  prece- 
dents in  such  matters,  we  forget  to  supplement  them  by  that 
saving  good  sense  which  appears  in  the  swiftness  and  vigor  of 
English  administration.  If  we  follow  English  practices  we 
should  remember  that  they  are  all  meant  to  go  together  ;  they 
may  lose  their  wisdom  and  good  sense  when  separated."  ' 

When  the  acquittal  of  a  culprit  has  been  once 
secured  by  the  skill  of  his  counsel,  there  is  thrown 
about  him  the  cloak  of  protection  afforded  by  the 
principle,  sound  when  properly  used,  that  no  man 
shall  be  twice  put  in  jeopardy  for  the  same  offense. 
He  is  secure  in  his  freedom,  whatever  new  evidence 
may  be  discovered  of  his  guilt.  This  wise  pro- 
vision for  the  relief  of  the  innocent  is  often  per- 
verted to  the  protection  of  the  guilty. 

Another  serious  defect  in  our  criminal  codes  is 
the  wide  discretion  which  they  allow  to  the  trial 
judge  in  fixing  the  sentence  of  a  convict.  Judges 
are  subject  to  the  same  variations  of  feeling  and 
judgment  as  other  men.  Not  only  do  the  opinions 
of  the  same  judge  concerning  the  amount  of  the 

1  Thayer  on  Evidence  at  the  Common  Law,  p.  507. 


82  The  Science  of  Penology 


penalty  to  be  imposed  for  a  crime  vary  according 
to  his  condition  of  mental  and  physical  health  and 
the  impressions  made  on  his  mind  by  the  circum- 
stances of  the  trial,  but  different  judges  also  in 
different  places  and  under  different  circumstances 
take  widely  different  views  concerning  the  proper 
penalty  for  the  same  crime.  Thus  it  naturally  hap- 
pens that  there  is  a  wide  difference  in  the  punish- 
ment of  the  same  crime  in  different  localities,  and 
in  the  same  locality  at  different  times.  The  aver- 
age of  sentences  for  burglary,  for  example,  ranged 
in  1890  from  one  year  and  six  months  in  New 
Mexico  to  eight  years  and  six  months  in  Georgia. 
This  leads  the  criminal  lawyer  to  try  to  secure  for 
his  client  a  trial  before  a  court  which  will  be 
likely  to  inflict  the  lightest  sentence.  It  deprives 
the  law  of  that  certainty  of  penalty  which  chiefly 
makes  it  effective  in  the  restraint  of  crime. 

The  criminal  defense  of  criminals  by  the  procura- 
tion of  perjury  has  become  one  of  the  commonest  of 
all  crimes.  It  is  the  shield  which  the  criminal  class 
depends  upon  for  immunity.  Perjury  is  prima  facie 
evidence  of  criminal  depravity  of  character,  and 
should  identify  the  perjurer  immediately  as  a 
criminal  of  the  most  dangerous  class.  Society  re- 
quires the  prompt  condemnation  of  the  perjurer  to 
indefinite  confinement  in  a  reformatory  as  a  primary 
essential  of  self-protection. 

The  horrid  experience  of  the  past  has,  in  nearly 
all  the  United  States,  reduced  the  kinds  of  punish- 
ment administered  by  law,  for  all  except  capital 


Criminal  Codes  83 


crimes,  to  imprisonment  and  fines ;  the  latter  of 
which  are  limited  by  the  inability  of  the  convict  to 
pay,  and  the  former  by  statutory  time-limits.  The 
convict  has  applied  to  him  the  number  of  days,  or 
months,  or  years  of  confinement,  up  to  the  duration 
of  his  life,  which  the  local  law  prescribes  for  the 
crime  he  has  committed.  Not  only  do  the  legal 
definitions  of  crimes  and  the  views  of  judges  differ, 
but  the  amount  of  the  fine  and  the  length  of  con- 
finement imposed  for  a  specific  crime  vary  greatly 
in  different  States.  Thus  the  criminal  code  of 
one  State  in  1879*  provided  for  the  punishment  of 
one  hundred  and  fifty  offenses  as  crimes,  only  one 
hundred  and  eight  of  which  were  recognized  as 
crimes  by  the  code  of  another  State.  Investigation 
disclosed  the  fact  that  more  that  half  the  commit- 
ments during  the  year  in  the  former  State,  in  the 
latter  would  have  been  punished  by  fines  only. 
The  maximum  penalty  for  bigamy  ranges  in  dif- 
ferent States  from  one  to  twenty-one  years'  imprison- 
ment. The  penalty  for  perjury  in  one  State  is  a 
fine  limited  between  a  minimum  of  $500  and  a 
maximum  of  $2000,  in  others,  five  years'  imprison- 
ment ;  in  still  others,  imprisonment  for  life ;  and  in 
one,  death,  if  the  crime  causes  the  execution  of  an 
innocent  person.  The  guilt  of  perjury  in  Indiana 
is  to  that  of  incest  as  twenty-one  to  five,  but  in 
Kentucky  it  is  as  five  to  twenty-one.  The  penalty 
for  arson  varies  from  imprisonment  for  from  one 
to  ten  years  to  death  :  in  Pennsylvania,  Ohio, 

1  Practical  Sociology,  Wright,  p.  350. 


84  The  Science  of  Penology 


Nebraska,  and  Kentucky  it  is  twice  that  of  burglary, 
but  in  Connecticut  the  guilt  of  burglary  is  twice 
that  of  arson;  for  grand  larceny  from  two  to  twenty 
years'  imprisonment ;  and  for  forgery  from  three 
years'  to  imprisonment  for  life,  according  to  loca- 
tion. The  guilt  of  burglary  in  Kentucky  and 
Alabama  is  twice  that  of  larceny,  but  three  times 
in  Wisconsin  and  Mississippi,  four  times  in  Georgia 
and  Nevada,  five  times  in  New  Hampshire,  and  six 
times  in  New  Mexico. 1 

The  Chicago  Tribune  reports  6225  murders, 
107  lynchings,  and  only  131  executions  in  the 
United  States  in  1899.  The  public  took  the  ex- 
ecution of  the  criminal  out  of  the  hands  of  the 
law  almost  as  often  as  the  law  was  judicially  ex- 
ecuted. If  a  criminal  is  speedily  punished  for  his 
crime  the  newspapers  are  so  surprised  at  the 
occurrence  that  they  herald  the  magistrate  as  a 
"  Railroader."  Such  incongruities  in  the  infliction 
of  penalties  deprive  them  of  much  of  their  effi- 
ciency, and  the  corollary  is  logically  deduced  : 

That,  to  be  useful,  the  penalty  inflicted  upon  crim- 
inals for  each  specified  crime  must  be  immediate, 
uniform,  and  certain. 

In  the  punishment  of  crime  we  must  of  neces- 
sity deal  with  individuals,  but  we  can  prescribe  a 
general  treatment  of  criminals  in  classes,  according 
to  the  general  phases  of  their  malady.  Every  con- 
vict can  be  assigned  to  one  of  the  first  four  categories 

1  See  Eleventh  United  States  Census,  "Crime,    Pauperism  and  Benevo- 
lence," p.  378,  for  full  illustration. 


Criminal  Codes  85 


into  which  the  whole  criminal  class  has  been  above 
*  divided.  If  then  there  is  a  single  sentence  ap- 
plicable to  them  all,  which  will  secure  expiation  ade- 
quate for  the  crime  of  each  individual,  and  will 
certainly  and  permanently  eliminate  him  from  the 
active  hostile  ranks  of  the  criminal  class,  it  will 
be  in  accord  with  the  penological  laws  we  have 
formulated,  and  provide  an  effectual  remedy  for  all 
the  faults  of  our  present  criminal  codes. 

All  agree  that  "  Criminal  Madmen "  must  be 
placed  in  confinement  until  pronounced  cured  by 
competent  experts.  It  is  equally  manifest  that 
"Instinctive"  and  "Habitual  Criminals,"  whether 
the  victims  of  heredity  or  environment,  have  no 
right  to  freedom  until  they  are  pronounced  cured 
by  competent  experts  ;  and  that  the  safety  of  so- 
ciety requires  their  confinement  until  they  are  re- 
formed or  cured.  It  is  incumbent  upon  the  civil 
Government  to  provide  suitable  hospitals  for 
the  confinement  and  treatment  of  the  criminal  in- 
sane, under  the  care  of  professional  alienists  au- 
thorized to  discharge  patients,  as  in  other  hospitals, 
when  restored  to  reason. 

For  the  second  and  third  classes, — the  "  Instinc- 
tive "  and  "  Habitual  Criminals," — reformatories 
managed  by  professional  criminologists  are  neces- 
sary. There  criminals  may  be  safely  secluded  from 
society  and  employed  in  useful  labor  for  their  own 
maintenance,  and  for  the  expiation  of  their  offenses 
to  society  or  to  the  victim  of  their  crime.  When 
the  criminologist  in  charge  shall  report  to  the 


86  The  Science  of  Penology 


sentencing  judge  the  reformation  of  a  convict,  a 
State  commission  should  have  discretionary  power 
to  order  either  a  conditional  or  full  discharge. 
The  sentence  of  commitment  for  him  must  also 
be,  like  that  of  the  madman,  continual  confine- 
ment until  a  cure  is  effected.  The  peniten- 
tiaries already  built  can  be  utilized,  so  that  no 
additional  expense  for  institutions  for  the  se- 
clusion of  criminals  under  this  plan  will  be 
needed.  The  confinement  of  these  three  cate- 
gories disposes  of  half  of  the  existing  criminal 
class. 

For  the  remainder,  the  "  Single  Offenders," 
whose  offense  is  the  first  indication  of  their  malady, 
reformatories,  under  the  management  of  the  most 
capable  and  intelligent  professional  criminologists, 
need  to  be  provided,  in  which  they  may  be  con- 
fined until  their  entire  character  has  been  sufficient- 
ly determined,  and,  if  necessary,  so  strengthened 
and  reformed  as,  in  the  judgment  of  experts,  to  al- 
low them  freedom  without  danger  to  society. 
Such  institutions  must  have  facilities  and  arrange- 
ments for  the  reformation  of  the  convicts  ;  their 
instruction  in  the  various  occupations  of  self-sup- 
port to  which  they  may  appear  best  adapted  ; 
their  employment  in  labor  for  their  own  mainten- 
ance, and  the  expiation  of  their  crimes.  Sentence 
to  the  reformatory  should  have  a  minimum  limit 
sufficient  in  the  discretion  of  the  committing  magis- 
trate for  cure  and  expiation,  and  be  continuous 
until  a  conditional  discharge  for  the  improved  or 


Criminal  Codes  87 


reformed,  or  a  transfer  of  the  incorrigible  convict 
to  the  penitentiary,  shall  be  ordered  by  a  State 
commission,  upon  the  recommendation  of  the  super- 
intendent or  warden.  This  sentence  will  minimize 
as  far  as  possible  that  destruction  of  self-respect  by 
the  stigma  of  imprisonment  which  is  one  of  the 
chief  difficulties  in  the  reformation  of  the  first 
offender. 

Crime  is  a  violation  of  the  law  of  the  State.  The 
execution  of  the  State  law  devolves  of  necessity 
upon  the  State,  and  therefore  the  punishment  and 
treatment  of  criminals  is  the  province  and  function 
of  the  State  only.  County  jails  or  prisons  under 
county  management  are  a  legal  absurdity  and  ab- 
normity. The  abandonment  of  a  convict  by  the 
power  which  has  convicted  him  to  the  care  and 
keeping  of  a  county  official,  with  no  interest  in  him 
except  the  money  to  be  made  out  of  his  keeping,  is 
a  serious  dereliction  of  duty  on  the  part  of  the  State. 
It  is  like  the  locking  up  in  a  police  station  of  a 
smallpox  or  cholera  patient  ,found  on  the  street.  It 
is  an  axiom  of  Penology  that  county  jails  are  nur- 
series and  hotbeds  of  crime  and  criminality.  There 
is  an  extensive  and  expensive  plant  of  them  in  the 
country,  which  should  be  placed  under  State  man- 
agement, and  used  for  the  confinement  of  uncon- 
victed  prisoners  and  detained  witnesses,  according 
to  their  original  purpose.  These  statements  are  no 
mere  expressions  of  opinion,  but  are  demonstrated 
and  accepted  as  positive  facts  in  American  Penol- 
ogy ;  therefore  : 


88  The  Science  of  Penology 

Penology  requires  that  the  punishment  and 
treatment  of  all  convicts  must  be  under  the  adminis- 
tration of  the  law-making  authority. 

There  are  two  very  large  species  of  the  criminal 
class  which  are  readily  differentiated  by  the  nature 
of  their  malady,  like  the  insane.  They  are  the 
drunkards  and  the  prostitutes.  Drunkenness  and 
prostitution  are  not  only  crimes  in  themselves  but 
are  also  the  prolific  source  and  cause  of  three  fourths 
of  the  burden  of  crime  borne  by  society.1  Although 
drunkenness  is  not  generally  recognized  as  a  crime, 
of  the  978,879  estimated  arrests  in  the  United  States 
in  1899,  37.1  per  cent.,  or  364,164,  were  for  that  of- 
fense.2 The  successful  treatment  and  reformation  of 
these  species  require,  like  the  insane,  special  and  sep- 
arate reformatories,  managed  by  expert  specialists, 
to  which  offenders  should  be  committed  until  they 
are  cured,  or  transferred  to  the  penitentiary  for  the 
incorrigible.  Experience  has  absolutely  proved 
that  such  an  indefinite  confinement,  with  suitable 
treatment,  is  the  most  promising  remedy  for 
drunkards ;  and  by  such  a  commitment  no  other 
stigma  than  that  of  the  vice  is  involved. 

The  necessity  for  reformatories  for  prostitutes 
is  twofold  :  First,  the  remarkable  disproportion  of 
females  in  confinement  (only  four  per  cent,  in  1890) 
is  due  not  so  much  to  a  less  liability  to  depravity 
in  the  female  than  in  the  male  sex,  "  as  to  a  tim- 
idity, lack  of  self-reliance  and  initiative,  and  natural 
love  of  admiration  and  consequent  fear  of  the  ill 

1  Male's  Police  and  Prison  Cyclopedia,  1893.  s  Appendix  A. 


Criminal  Codes  89 


opinion  of  others  ;  together  with  a  certain  leniency 
from  gallantry  on  the  part  of  the  sex  which  executes 
the  law."  *  Because  of  the  fearful  and  almost  irre- 
mediable injury  inflicted  upon  a  woman  by  convic- 
tion and  imprisonment,  she  escapes  arrest,  except 
for  flagrant  criminality,  when  her  character  cannot 
be  injured.  Second,  the  female  tendency  to  deprav- 
ity finds  a  natural  vent  in  disregard  of  chastity,  and 
in  the  practice  of  prostitution.  A  suitable  reforma- 
tory would  afford  an  asylum  to  which  prostitutes 
could  be  committed  for  treatment  before  they  reach 
the  incorrigible  stage  ;  and  thus  provide  an  efficient 
means  of  reformation  and  repression  of  this  great 
evil.  Hence,  penological  science  requires  the  institu- 
tion of  special  reformatories,  with  expert  manage- 
ment, for  the  treatment  of  common  drunkards  and 
prostitutes. 

The  evidence  in  the  trial  of  an  accused  person 
will,  in  most  cases,  show  clearly  the  class  to  which 
he  is  to  be  assigned,  when  convicted.  When  it  does 
not,  the  sentencing  magistrate  can  commit  him  to 
the  reformatory,  where  a  scientific  and  prolonged 
examination  of  the  case  can  be  made,  and  a  just  de- 
cision reached.  When  the  arrest  and  conviction  of 
all  the  criminal  class  has  disposed  of  it  in  this  man- 
ner, society  will  be  entirely  relieved  of  the  burden, 
and  largely  of  the  fear  of  it.  At  the  same  time  the 
propagation  and  natural  increase  of  it  by  generation 
will  be  stopped. 

1  Hon.  Philip  B.  Garrett,  National  Conference  Charities  and  Correction, 
1897. 


9Q  The  Science  of  Penology 


It  is  manifest  that  what  is  termed  the  "  Indeter- 
minate Sentence  "  conforms  to  all  these  conditions, 
satisfies  all  the  requirements,  and  effectually  solves 
the  problem.  It  is  the  only  single  sentence  which 
can  be  applied  to  all  cases  with  justice.  By  it  the 
judge  commits  a  convict  to  a  reformatory  just  as  a 
doctor  commits  a  sick,  injured,  or  insane  person  to 
a  suitable  hospital  until  cured,  and  for  the  same 
reasons.  The  science  of  Penology  has  demonstrated 
positively  that  crime  is  the  unmistakable  symptom 
and  evidence  of  a  disease  ;  dangerous,  persistent,  con- 
tagious, and  endemic.  It  is  as  absurd  to  commit  a 
person  in  whom  this  symptom  has  been  detected  to 
prison  for  ten  or  thirty  days,  six  months,  or  a  defi- 
nite number  of  years,  as  for  a  doctor  to  commit  an 
insane  or  other  patient  to  the  hospital  for  the  same 
limited  terms. 

The  province  of  criminal  law  is  not  alone  to 
punish  criminals,  nor  is  this  its  most  important  ob- 
ject, though  this  is  the  only  ostensible  purpose  of 
the  existing  codes.  Its  primary  duty  is  to  restrain 
in  confinement  all  detected  criminals  so  long  as  they 
menace  society  ;  to  catch  and  confine  as  quickly  and 
completely  as  possible  the  entire  criminal  class 
found  in  its  midst.  It  must  provide  and  secure  an 
intelligent,  scientific  treatment  of  its  prisoners  cal- 
culated to  effect  their  cure,  reformation,  and  adap- 
tation to  an  honest  social  existence  when  they  are 
liberated,  together  with  the  identification  and  con- 
tinued seclusion  of  the  incorrigible.  But  it  is  not 
enough  to  eliminate  the  arrested  alone  from  the 


Criminal  Codes  91 


hostile  ranks.  The  purview  of  the  law  must  include 
the  source  of  the  stream  of  crime  which  overflows 
without  ceasing  the  fields  of  social  prosperity  and 
comfort.  Wise  criminal  sanitation,  hygienics,  and 
inhibition  are  decidedly  more  efficient  as  preven- 
tives than  all  the  deterrence  to  be  hoped  for  from 
penalties.  Indeed  the  easiest,  most  economical, 
and  fruitful  efforts  which  society  can  make  for  the 
restriction  of  criminality  are  those  which  can  be  ap- 
plied at  its  incipient  springs.  The  criminal  code 
must  now  pass  beyond  the  limit  of  the  overt  act, 
and  reach  down  to  include  in  its  care  all  the  dan- 
gerous elements, — the  offspring  of  criminals,  the  un- 
cared-for children  who  are  constantly  recruiting  the 
criminal  class, — and  effectually  stop  by  its  prohibi- 
tions and  the  seclusion  of  the  diseased  the  propa- 
gation of  depraved  offspring.  Scientific  Penology 
demands  even  more  than  this,  that  society  shall 
educate  and  cultivate  the  moral  natures  of  all  its 
children  equally  with  their  mental  and  physical 
functions,  and  insure  a  normal,  all-around,  healthy 
development  of  the  rising  generation,  fortified  and 
harmoniously  strengthened  in  these  three  elements 
of  character  to  resist  the  virus  of  moral  depravity, 
the  germs  of  criminality. 

The  faults  of  our  present  criminal  codes  are  so 
grave  that  no  correction  of  them  is  possible  by  any 
patchwork  legislation.  The  incontrovertible  con- 
clusion of  scientific  Penology  is  that  the  whole  con- 
fused and  diverse  specification  of  penalties  for 
crime  should  be  expunged  from  the  statute  books, 


92  The  Science  of  Penology 


and  a  new,  plain,  and  simple  code  enacted  ;  founded 
on  the  moral  status  of  the  criminal,  and  not  on  the 
crime  alone.  The  overt  act  must  be  recognized 
simply  as  the  unmistakable  symptom  of  a  diseased 
condition,  for  which  the  perpetrator  is  to  some  ex- 
tent responsible,  to  be  sure,  but  which  it  is  the  duty 
of  the  State  to  cure  for  the  protection  of  society. 

The  death  penalty  for  wilful  murder  has  been 
proved  to  be  useless  for  protection,  and  should  be 
abolished.  Life  imprisonment  without  hope  of  par- 
don will  best  secure  the  protection  of  society. 
This  subject,  however,  will  receive  special  treatment 
in  the  following  chapter. 

For  sexual  crimes,  nature  offers  an  effective 
penalty  and  cure  in  castration.  This  penalty  would 
act  as  the  most  powerful  deterrent  if  it  was  certain 
and  quickly  imposed.  It  is  a  good,  sufficient,  and 
natural  punishment,  and  prevents  the  repetition  of 
the  crime.  For  all  other  crimes,  penal  fines  and 
terms  of  punitive  imprisonment  in  a  reformatory 
should  be  imposed,  the  fine  to  be  liquidated  by 
labor  or  cash  payment,  and  the  confinement  to  be 
continued  until,  under  the  operation  of  the  dis- 
cipline of  the  reformatory,  the  convict  is  cured  of 
his  disease,  or  permanently  secluded  in  a  peniten- 
tiary. The  indeterminate  sentence  is  the  logical 
deduction  and  discovery,  the  sufficient  and  crown- 
ing fruition  of  twentieth-century  Penology.  It  has 
been  partially  adopted  in  several  of  our  States, 
where  the  results  have  been  so  satisfactory  that  we 
may  state  it  as  a  settled  principle  : 


Criminal  Codes  93 


That  all  sentences  of  confinement  must  have  only  a 
'minimum  limit  for  retribution,  and  be  continuous 
thereafter  ^lntil  the  convict  is  declared  cured  by  com- 
petent authority. 

Every  State  should  have  a  prison  inspector,  or 
commissioner,  who  should  have  power  over  the  ad- 
ministration of  all  penal  and  reformatory  institu- 
tions sufficient  to  enforce  the  laws  and  protect  both 
the  interests  of  the  State  and  the  rights  of  the 
prisoner.  As  experience  and  knowledge  will  add 
to  his  ability  and  usefulness,  the  term  of  his  office 
should  be  during  good  behavior.  The  State  prison 
inspector,  the  superintendent  or  warden  of  the 
institution  where  a  prisoner  is  confined,  and  the 
judge  of  the  court  by  which  he  was  committed 
should  be  constituted  a  court  with  full  power  to 
order  the  discharge  of  a  prisoner  when  he  has 
given  sufficient  evidence  of  his  cure  and  fitness  for 
social  life,  and  to  transfer  the  incurable  and  incor- 
rigible to  the  penitentiary  for  permanent  seclusion. 
Such  a  court  should  be  the  court  of  last  appeal 
for  all  convicts. 

This  system  of  dealing  with  criminals  involves 
the  repeal  of  nearly  all  powers  of  pardon  conferred 
upon  executive  officers  and  boards  of  pardon  : 
these  powers,  necessary  under  vindictive  penal 
statutes,  are  always  liable  to  be  greatly  abused 
through  political  influence.  The  hope  of  par- 
don is  never  abandoned  by  the  criminal  during 
a  long  sentence,  nor  does  he  ever  cease  his  impor- 
tunities and  effort  to  secure  an  alleviation  of  its 


94  The  Science  of  Penology 


severity,  or  escape  from  its  execution.  This  hope 
is  a  confident  expectation  before  the  crime  is  com- 
mitted, and  counterbalances  much  of  the  deter- 
rence of  the  legal  penalty.  The  granting  of  pardon 
as  an  act  of  clemency  works  great  public  injury 
under  our  present  laws,  and  to  a  large  extent  de- 
feats their  object.  It  should  be  restricted  to  cases 
when  new  and  positive  evidence  of  innocence  is 
discovered  after  sentence.  After  a  learned  judge 
and  honest  jury  have  carefully  tried  a  prisoner,  it  is 
absurd  to  allow  any  officer  of  the  Government  to 
rehear  and  reverse  the  decision.  Such  a  power  in- 
vites improper  influences  and  suggests  wrong 
motives.  It  is  therefore  an  additional  advantage 
in  a  scientific  system  of  criminal  legislation  that  it 
relieves  both  society  and  its  executive  officers  from 
the  responsibility  and  annoyance  of  exercising  the 
pardoning  power.  The  whole  responsibility  of  re- 
lease is  transferred  to  the  convict,  where  it  belongs. 


CHAPTER  VI. 

THE    DEFENSE   OF   SOCIETY,  AND  STATE  CONTROL 
OF  CRIMINALS. 

Recidivists  the  Main  Body  of  the  Hostile  Force — The  Most  Danger- 
ous—  Proportion  of,  among  Convicts — Must  be  Cured  before 
Discharge — Benefits  of  their  Confinement — Necessity  of  Uniformity 
in  the  Criminal  Codes  of  all  States — Single  and  Juvenile  Offenders — 
The  Presumptive  Category — Obligation  of  the  State  to  Execute  its 
Own  Laws — County  Jails  a  Relic  of  Early  Conditions — Their  Present 
Disadvantages — State  Care  a  Duty  to  the  Criminal — Economy  of 
State  Care. 

WE  have  explained,  in  what  has  preceded,  some 
of  the  principal  elements  and  conditions  of 
the  problem  which  the  protection  of  society  from 
the  depredations  of  criminality  presents,  as  eluci- 
dated under  the  light  of  the  highest  intelligence 
of  our  times.  We  shall  now  proceed  to  examine 
and  define  the  strategic  principles  upon  which  a 
successful  defense  of  society  against  crime  must  be 
conducted,  and  some  of  the  more  obvious  tactical 
measures  which  are  logically  suggested  by  our 
present  science. 

In  this,  as  in  every  contest,  the  main  object  must 
be  to  overcome  and  subdue  the  hostile  forces. 
These  forces,  as  we  have  shown,  are  not  solely  the 
detected  and  arrested  criminals  who  have  made 
their  attack,  inflicted  their  damage,  and  been 

95 


96  The  Science  of  Penology 


captured,  but  the  main  body  of  the  criminal  class 
at  large  in  our  midst,  ten  times  the  number  of  this 
captured  skirmish-line,  which  is  lying  constantly 
in  wait,  ready  to  spring  upon  any  unprotected 
point,  whose  sharpshooters  disturb  the  public 
peace,  harass  our  best-guarded  strongholds,  and 
keep  society  in  perpetual  alarm.  The  subjection 
and  control  of  this  force  is  the  only  complete  de- 
fense against  crime.  There  is  no  defense  in  the 
conviction  and  confinement  of  one  who  has  already 
perpetrated  his  crime,  except  so  long  as  imprison- 
ment prevents  his  perpetrating  another.  The 
prisoner  must  therefore  never  be  allowed  to  return 
to  society  as  a  reinforcement  to  the  criminal  class. 
He  must  be  held  in  hospital  until  his  disease  is 
cured,  his  reformation  complete,  and  he  is  able 
and  willing  to  take  an  oath  of  allegiance  to  the 
powers  of  order  and  honesty. 

About  half  of  the  convicts  confined  in  our  penal 
institutions,  as  in  those  of  other  countries,  by  a 
moderate  estimate,  are  recidivists.1  A  recidivist  is 
an  anomaly,  an  absurdity  of  national  penal  legisla- 
tion. He  is  not  only  a  social  pest,  but  a  reproach 
upon  social  intelligence.  There  is  no  reason  for 
his  existence,  except  the  stupidity  or  indifference  of 
the  legislator.  The  recidivists  are  the  professional 
class  of  criminal  experts  from  which  society  suffers 
its  greatest  damage,  which  excite  its  greatest  fears 
when  at  large,  and  cost  it  most  for  protection, 
arrest,  conviction,  and  maintenance  in  prison.  The 

1  See  The  Criminal,  Drahms,  p.  227. 


The  Defense  of  Society  97 


875  convicts  committed  to  the  penitentiaries  of 
Pennsylvania  in  1898,  represented  1808  convictions 
or  commitments.1  Mr.  Brockway  estimates  the 
number  of  recidivists  in  New  York  prisons  at  sixty 
per  cent,  of  the  inmates. 2  Morrison,  in  Juvenile 
Offenders,  estimates  the  old  offenders  to  be  seventy 
per  cent,  of  the  convict  population. 3  Dr.  McKim, 
in  Heredity  and  Human  Progress,  cites  the  case  of 
one  criminal  who  had  been  arrested  no  less  than  one 
thousand  times.4  It  is  not  an  infrequent  occurence 
to  find  convicts  with  a  record  of  fifty  convictions. 
Against  the  class  of  recidivists  undoubtedly  may 
be  properly  charged  at  least  two  thirds  of  the 
crimes  committed  and  of  the  cost  of  criminality  in 
America,  which  according  to  the  estimate  made  in 
Chapter  I.  is  an  annual  cost  of  some  $600,000,000 
to  society. 

Moreover,  this  criminal-expert  class  is  the  parent 
and  educator,  the  inspiration  and  example,  of 
youthful  criminality ;  the  unfailing  source  and 
spring  of  the  reinforcements  which  bafHe  and  defeat 
all  the  efforts  made  to  bring  the  contest  with  crime 
to  a  victorious  conclusion.  There  can  be  no  ques- 
tion or  doubt,  then,  that  the  first  direct  object  of 
penal  legislation  must  be  the  elimination  and  ex- 
tinction of  the  recidivistic  class  of  criminals. 
Protection  is  impossible  while  the  repetition  of  crime 
is  possible.  To  discharge  an  uncured  criminal  into 
society,  after  his  disease  has  been  discovered,  is  not 

1  Report  Board  of  Public  Charities,  i8q8,  p.  154.  8  See   p.  236. 

2  See  The  Criminal,  Drahms,  p.  227.  *  See  p.  180. 

7 


98  The  Science  of  Penology 


only  an  invitation  and  encouragement  to  new  dep- 
redations, but  a  dissemination  of  contagion.  It  is 
an  axiom  of  Penology  that  criminality  is  a  disease; 
that  it  is  a  disease  that  can  be  cured.  It  is  there- 
fore the  natural,  logical,  and  cardinal  principle  of  the 
strategy  of  social  defense  against  crime,  that  every 
developed  case  of  the  disease  of  criminality  must  be 
cured  before  society  is  again  exposed  to  its  attack. 

Every  convict  must  be  retained  in  seclusion  under 
treatment  by  competent  doctors  until  declared 
reformed  and  harmless  ;  or,  if  the  case  proves 
chronic  and  incorrigible,  confinement  must  be  con- 
tinued until  death  eliminates  that  unit  of  danger. 
This  is  the  only  possible  defense  from  recidivism. 
It  effectually  and  completely  exterminates  the  class 
of  recidivists  from  the  hostile  forces  of  criminality. 
It  entirely  relieves  society  from  the  attack  of  the 
more  dangerous  half  of  the  criminal  class  and  from 
two  thirds  of  its  cost.  It  solves  two  thirds  of  the 
problem  of  defense,  reduces  the  number  of  crimes 
committed  two  thirds,  and  permits  the  concentra- 
tion of  all  the  defensive  operations  upon  the  pro- 
tection of  society  from  the  attacks  of  crime  from 
undiscovered  directions.  The  extermination  of 
recidivists  disposes  of  the  first  three  categories  of 
the  criminal  class, — the  "  Criminal  Madmen,"  the 
"Instinctive,"  and  the  "Habitual  Criminals," — leav- 
ing society  exposed  only  to  the  "  Occasional  "  and 
"  Presumptive  "  categories. 

The  solution  of  the  major  and  most  important 
part  of  the  problem  is  the  least  difficult  and  com- 


The  Defense  of  Society  99 


plicated  part  of  the  system  of  defense.  The  con- 
victed recidivists,  being  held  in  confinement  until 
reformed,  are  no  longer  a  menace  to  society.  The 
nine  tenths  of  them  who  are  at  large  must  be  identi- 
fied, arrested,  and  confined  as  rapidly  as  their 
disease  develops  into  overt  crimes.  Most  of  these 
are  already  known,  and  under  the  surveillance  of  the 
detective  police.  Their  places  of  habitation  and 
characters  are  known  in  proportion  to  the  vigilance 
and  activity  of  the  police.  About  ninety  per  cent, 
of  convicts  are  from  cities  which  have  police  pro- 
tection,1 and  undoubtedly  nearly  every  recidivist  is 
to  be  found  in  the  cities  where  he  can  easiest  sub- 
sist by  prey.  If,  now,  every  person  who  is  arrested^ 
or  who  is  known  as  a  professional  thief  or  criminal 
to  the  police  of  our  cities,  were  identified  and  de- 
scribed by  the  Bertillon  system  of  signalments,  as 
prescribed,  and  these  signalments  collected  from  all 
sources,  from  prisons,  jails,  police  stations,  magis- 
trates, and  courts  all  over  the  country,  into  one  cen- 
tral bureau  at  Washington,  to  which  all  officials 
might  have  recourse,  in  a  very  short  time  the  whole 
criminal  class  would  be  identified,  and  would  soon 
be  confined. 

The  modern  facilities  for  rapid  change  of  loca- 
tion, the  measure  of  security  from  arrest  which  the 
stranger  enjoys  in  a  community,  and  the  fact  that 
crime  naturally  seeks  the  line  of  least  social,  as  it 
does  that  of  the  least  personal  resistance,  invites  it 
to  those  States  where  the  laws  are  least  severe  in 

1  Cyclopedia  of  Social  Reform^  p.  420. 


ioo  The  Science  of  Penology 


the  penalties  imposed  upon  crimes,  and  their  ad- 
ministration the  least  effective.  Uniformity  of  the 
criminal  codes  of  the  different  States,  therefore,  be- 
comes an  important  factor  of  social  defense.  It  is 
a  strategic  principle  that  the  lines  of  defense  shall 
have  no  weak  points,  but  be  equally  invulnerable 
everywhere.  The  existing  diversity  of  criminal 
codes  in  the  United  States  not  only  introduces  the 
element  of  uncertainty  of  punishment,  and  acts  as  an 
incitement  to  criminality  in  general,  but  unduly  in- 
creases the  social  damage  and  cost  in  those  com- 
munities which  practise  the  greatest  leniency 
toward  criminals.  The  defense  of  society  by  law 
depends  chiefly  for  its  efficiency  upon  the  certainty 
of  punishment  of  crime.  The  co-operation  of  the 
proposed  State  commissioners,  and  their  super- 
vision at  national  headquarters,  would  conduce 
toward  promoting  such  uniformity  of  codes  and 
penalties  in  the  several  States  as  would  assure  a 
fixed  and  definite  sentence  for  every  crime,  wherever 
it  might  be  committed.  It  would  hasten  such  a 
revision  of  all  codes,  and  such  a  change  of  base 
from  vindictive  punishment  to  reformation  of 
character,  as  science  requires. 

The  lines  of  defense  against  the  two  remaining 
categories,  the  "  Single  Offenders"  and  "  Presump- 
tive Criminals,"  are  more  extensive,  attenuated,  and 
difficult.  "  Single  Offenders  "  will  be  found  both 
among  adults  and  juveniles.  The  adults  are  guilty 
of  the  more  heinous  crimes  but  are  fewer  in  num- 
bers ;  the  juveniles  are  more  numerous  but  are 


The  Defense  of  Society  101 


generally  petty  malefactors.  The  single  crime 
must,  however,  be  interpreted  as  the  first  develop- 
ment of  the  disease  into  an  acute  condition,  which 
calls  for  instant  remedial  treatment.  The  adults 
must  be  indefinitely  consigned  to  a  punitive  confine- 
ment in  a  reformatory.  But  no  such  general  rule 
can  be  laid  down  for  the  juvenile  malefactor ;  his 
disease  may  be  assumed  to  be  in  its  incipient  and 
tractable  stage.  Confinement  with  older  criminals 
will  be  more  likely  to  promote  its  development 
than  to  effect  its  cure,  even  in  the  reformatory. 
Unless  there  are  unmistakable  evidences  of  pro- 
nounced criminality,  or  the  crime  is  one  of  serious 
gravity,  it  will  be  preferable  to  commit  the  juvenile 
offender  to  a  suitable  industrial  training  school,  or 
to  liberate  him  after  admonition  under  the  surveil- 
lance of  a  probation  officer.  The  imprisonment  of 
a  juvenile  first  offender  is  usually  a  much  graver 
social  crime  than  that  of  which  he  is  accused.  He 
should  be  regarded  rather  as  a  "  Presumptive  "  than 
as  an  actual  criminal.  The  signalments  of  both 
juveniles  and  adults,  however,  should  be  put  into 
the  records,  where  they  will  remain  forever  hidden, 
unless  brought  forth  by  some  future  crime. 

Having  in  this  way  effected  the  protection  of 
society  from  the  categories  of  innate  criminality, 
there  remains  only  the  "  Presumptive  "  category  to 
be  guarded  against.  A  defense  must  be  attained 
from  the  attacks  of  recruits  or  reinforcements  of 
the  criminal  class  from  the  rising  generations  as 
they  progressively  reach  the  age  of  hostile  ma- 


102  The  Science  of  Penology 


turity.  To  accomplish  this  it  will  be  necessary 
that  the  State  extend  its  supervision  and  control 
over  all  the  children  of  its  citizens,  and  enforce 
their  proper  and  rational  nurture  and  education. 
The  defective,  depraved,  and  incorrigible  must  be 
identified  in  childhood  and  placed  under  special 
care  and  training,  and  their  surveillance  by  officials 
secured,  with  a  view  to  restore  normal  conditions  of 
health.  Illegitimate  orphans,  deserted  and  neg- 
lected children,  must  be  placed  under  State  care, 
and  a  system  of  scientific  culture  instituted,  calcu- 
lated to  eradicate  the  germs  and  inherited  tenden- 
cies to  moral  depravity.  Institutions  will  have  to 
be  provided  where  suitable  classifications  and  sub- 
divisions can  be  made,  and  the  State,  can  supply 
family  instruction  and  nurture,  to  remedy  so  far  as 
possible  the  failures  of  natural  parentage.  Industrial 
schools  for  instruction  in  trades  and  useful  occupa- 
tions must  be  maintained  for  the  older  children  so 
that  all  shall  be  assured  an  ability  to  earn  an  honest 
living,  according  to  their  stations  in  society.  The 
signalments  of  the  incorrigible  or  suspected  in- 
mates of  all  public  institutions  should  be  placed  in 
the  national  records.  They  will  supply  very  useful 
information  for  the  detection  of  future  criminals 
and  for  their  treatment  after  arrest. 

Such  a  system  as  has  been  described  seems  to  be 
the  only  practicable  defense  of  society  against  the 
attacks  of  crime  and  the  disease  of  criminality.  If 
executed  with  diligence  and  intelligence,  it  promises 
the  most  economical  and  humane  solution  of  the 


The  Defense  of  Society  103 


problem.  It  comprehends  the  whole  criminal  class 
in  its  scope.  It  removes  it  entirely  from  the  sphere 
of  hostilities,  and  prevents  the  repetition  of  crime 
by  all  its  elements.  It  is  plain  that  this  plan  can- 
not be  successfully  executed  unless  the  entire  con- 
trol of  all  convicts  within  its  boundaries  is  exercised 
by  the  State.  Indeed  there  can  be  no  rational, 
successful,  or  hopeful  defense  of  society  on  any 
plan  or  system  without  this. 

The  State  enacts  the  laws  and  must  of  necessity 
enforce  them,  or  they  are  vain  and  empty  edicts. 
The  moment  a  criminal  is  convicted  under  State 
laws  he  passes  of  necessity  under  the  control  of  the 
State  authorities.  The  State  has  no  right  or  ra- 
tionally justifiable  power  to  depute  the  execution  of 
its  sentence  to  an  independent,  irresponsible  agent. 
It  cannot  reasonably  be  relieved  of  the  responsi- 
bility and  duty  of  executing  the  sentence  which  it 
imposes.  The  power  of  executing  its  own  laws  in- 
heres naturally  and  solely  in  the  law-making  power. 
Because  crime  is  a  violation  of  the  laws  of  the 
State,  and  the  State  imposes  the  sentence,  the  State 
must  complete  its  duty  by  attending  to  its  proper 
execution. 

Much  of  the  inefficiency  of  our  criminal  codes  is 
due  to  the  improper  delegation  of  the  execution  of 
the  State  laws  to  county  officials  ;  and  to  the  con- 
finement of  convicts  in  county  jails,  managed  by 
sheriffs  elected  for  short  terms,  whose  chief  interest 
is  in  the  profits  to  be  gained  from  the  office,  and 
not  in  the  reduction  of  crime  in  the  community. 


104  The  Science  of  Penology 


The  county  system  of  dealing  with  crime  has  be- 
come a  byword  and  reproach  in  America,  con- 
demned for  years  by  all  penologists  ;  but  county 
officials,  actuated  by  short-sighted  selfishness,  have 
been  so  far  politically  powerful  enough  to  prevent 
its  overthrow. 

"  The  county  prison  is  a  relic  of  a  condition  of  affairs 
which  existed  when  the  States  were  young  and  the  criminal 
population  small — conditions  long  outgrown  ;  but  the  system 
established  in  the  early  days  survives  its  usefulness.  A  half 
a  century  ago  the  jails  were  used  almost  exclusively  for  per- 
sons waiting  trial  and  poor  debtors  ;  now  nearly  nine  tenths 
of  the  inmates  are  serving  sentences,  and  only  the  balance 
awaiting  trial.  Formerly  it  was  difficult  to  get  from  one 
county  to  another  :  judges  even  rode  their  circuits  on  horse- 
back. The  safe  transportation  of  criminals  was  impossible. 
In  those  times  the  criminal  was  a  local  product  who  was  neces- 
sarily tried  and  maintained  during  sentence  in  the  locality  of 
his  conviction.  Then  the  sheriff  and  his  deputies  were  the 
principal  officers  for  the  detection  of  criminals  and  the  en- 
forcement of  the  criminal  laws.  These  conditions  no  longer 
exist.  The  county  and  municipal  prison  are  both  wholly  out 
of  adjustment  with  any  rational  system  of  administering  crim- 
inal law,  and  should  no  longer  be  used  for  the  confinement  of 
convicts.  Only  about  half  the  prisoners  in  confinement  at 
the  time  of  the  census  of  1890  were  in  State  penitentiaries. 
The  40,000  or  more  in  other  institutions  were  under  various 
systems  of  discipline  and  management.  There  was  and  can 
be  no  uniformity  of  treatment.  Some  are  severe,  others 
lenient.  In  some  jails  the  diet  is  poor,  in  others  superabun- 
dant.1 In  some  there  is  employment,  and  in  others  idleness. 
Some  are  avoided  by  those  who  live  in  institutions  :  others 
are  sought  as  desirable  winter  quarters.  They  are  all  under 
political  influence,  and  managed  for  selfish  political  purposes, 

1  The  author  knows  one  jail  where  the  convicts  ate  at  the  sheriff's  table. 


The  Defense  of  Society  105 


to  such  an  extent  even  that  the  convict  with  political  influence 
secures  unwarranted  privileges.1  Discipline  and  economical 
management  are  impossible,  even  with  honest  and  well-inten- 
tioned officers. 

"  The  expense  of  prison  management  should  be  borne  by 
all  the  people  ;  for  every  citizen  is  interested  in  the  proper 
and  economical  management  of  the  criminal  class  all  over  the 
State,  and  not  alone  in  his  own  county.  Caring  for  criminals 
is  a  duty  of  neither  a  county  nor  a  city,  and  neither  should  be 
compelled  to  expend  money  for  that  purpose.  Nothing  can 
be  accomplished  in  county  prisons  in  the  way  of  reformation 
of  the  inmates,  who  return  time  after  time  until  death.  One 
half  of  all  the  prisoners  who  came  into  the  county  prisons  of 
Massachusetts  in  1897  had  been  in  the  same  institution 
before,  and  thirty-six  per  cent,  of  this  half  had  served  five  to 
fifty  sentences  each.  The  habitual  misdemeanant  is  found 
everywhere,  and  will  be  found  until  the  State  assumes  the 
management,  classifies  all  its  prisoners,  and  adapts  its  treat- 
ment of  them  to  their  real  needs,  with  a  view  to  their  refor- 
mation or  permanent  incarceration."  a 

It  is  not  only  as  a  duty  to  itself  and  to  society 
that  the  State  should  control  all  convicts.  It  is 
also  a  duty  which  the  State  owes  the  convict.  The 
State  has  declared  him  diseased,  and  it  is  as  great 
a  crime  for  the  State  to  thrust  him  into  prison 
without  providing  competent  professional  care  and 
treatment  as  to  confine  any  other  sick  person  picked 
up  on  the  street  in  prison  without  the  attention  of 
a  doctor.  Civilized  society  revolts  at  such  a  prop- 
osition. The  right  oL  a  criminal  to  skilful  and 

1  The  author  knows  of  a  sheriff  who  was  accustomed  to  take  convicts  to 
horse-races  in  another  county. 

2  Condensed  from  address  of  W.  F.  Spaulding,  National  Prison  Associa- 
tion, 1898,  p.  218. 


106  The  Science  of  Penology 


competent  treatment  from  the  power  which  de- 
prives him  of  his  freedom  and  ability  to  obtain  this 
himself,  is  as  inalienable  and  undeniable  as  that  of 
a  victim  of  sunstroke,  accident,  or  suddenly  de- 
veloped disease  who  falls  into  the  care  of  the  police. 
The  State  is  morally  liable  for  wilful  neglect  to 
provide  proper  care  in  such  cases,  and  it  is  prob- 
able that  the  time  will  come  when  the  law  will 
guarantee  such  rights  to  the  criminal. 

It  has  been  already  proposed  that  the  State,  or 
authority  responsible  for  the  public  safety,  should 
be  made  pecuniarily  responsible  for  neglect  to  pro- 
tect individuals  from  crime  ;  and  a  criminal  may 
demand  protection  from  undue  cruelties,  preserva- 
tion of  health,  and  religious  privileges,  in  his  con- 
finement. Now  that  criminality  is  recognized  as  a 
curable  disease,  he  may  justly  claim  that  the  State, 
when  it  locks  him  up,  shall  make  the  best  and  most 
skilful  provision  for  his  cure,  for  his  own  sake,  and 
as  his  personal  right,  as  well  as  for  the  good  of 
that  society  which  obtains  protection  by  the  dep- 
rivation of  his  liberty.  Such  provision  is  never 
made,  and,  from  the  natural  conditions  existing, 
cannot  be  made,  in  county  prisons.  It  is  a  law  of 
this  science  tkat  the  State  must  provide  competent, 
skilled  penologists  to  superintend  the  treatment  of 
all  convicts. 

It  is,  moreover,  a  settled  maxim  of  sociology  now, 
that  convicts  in  confinement  should  be  made  to  de- 
fray the  public  costs  of  their  confinement  by  pro- 
ductive work,  in  order  that  honest  laborers  may 


The  Defense  of  Society  107 


not  be  compelled  to  suffer  the  unnecessary  expense 
of  maintaining  them,  in  addition  to  the  inevitable 
cost  of  their  crime.  It  is  impossible  to  secure  this 
relief  for  society,  to  any  great  extent,  unless  all 
convicts  are  controlled  by  the  State,  and  in  institu- 
tions adapted  to  the  purpose.  It  can  be  accom- 
plished in  State  institutions,  and  is  in  some,  notably 
in  the  State  of  New  York  to  a  considerable  extent, 
since  recent  legislation  provided  suitable  employ- 
ment for  its  prisoners.  It  never  is  and  cannot  be 
done  in  county  jails.  Such  is  the  system  which 
penological  diagnosis  now  infers  and  offers  for  the 
defense  of  society  in  place  of  the  obsolete  and  in- 
effective measures  which  have  grown  up  out  of  the 
tentative  experiments  of  the  past.  It  involves 
not  only  State  watchfulness  to  prevent  insidious 
percolation  through  the  levees  raised  against  the 
flood  and  pressure  of  crime  from  destroying  them, 
but  such  control  of  the  headwaters  as  will  protect 
them  from  ruin  by  overflow. 


SECTION  II. 
THERAPEUTICS. 


109 


SECTION  II. 
THERAPEUTICS. 


CHAPTER  VII. 

LEGAL  PENALTIES. 

Punishment  the  Natural  Reaction  of  Violated  Law — A  Necessary  Sequence 
of  Crime — Justice  Impossible  in  Legal  Penalties — Penalties  Deterrent 
with  Majority — Function  of  Legal  Penalties — Effective  According  to 
Restraint  and  Deterrence — Now  Generally  Reduced  to  Fines  and 
Imprisonment — The  Death  Penalty — Homicides  and  Executions  in  the 
United  States — Capital  Punishment  Most  Effective  Restraint  and 
Deterrent — Murderers  Incapable  of  Restraint — Capital  Punishment  no 
Longer  Enacts  Public  Opinion — Castration  for  Sexual  Crimes — 
Imprisonment  for  Felonies — Continuous  until  Criminality  is  Cured 
— Hopefulness  of  Reformation — Reformatories  and  Indeterminate 
Sentence  for  "  Madmen,"  "  Instinctive,"  and  "  Habitual  Criminals" — 
First  Offenders  not  to  be  Imprisoned — Indemnity — How  to  be  Exacted 
— Simplification  of  Punishments  by  Science. 

THE  failure  of  violent  extremes  of  punishment 
to  reduce  the  plague  of  criminality  has  been 
indicated  in  the  section  on  diagnostics.  We  may 
not,  however,  conclude  from  such  failures  that  the 
function  of  punishment  should  be  omitted  from 
criminal  law.  All  laws  of  God  and  nature  are  en- 
forced by  the  penalties  which  inevitably  follow  their 
violation.  Violations  of  the  laws  of  health  cause 
sickness  and  personal  suffering ;  violations  of  the 


ii2  The  Science  of  Penology 

laws  of  physical  nature  result  in  disaster ;  violations 
of  the  laws  of  God,  which  govern  the  relation  of 
man  to  Him,  or  to  his  fellows,  the  laws  of  religious 
reverence,  of  truth,  of  honesty,  of  virtue,  of  moral- 
ity, produce  depravity  of  character,  incapacity  for 
happiness  in  this  life,  and  an  instinctive  expectation 
of  misery  in  the  next ;  whether  reason  rests  on  the 
revelations  of  the  Word  of  God  or  not.  The  main 
incident  which  has  survived  the  obliterations  of 
time  out  of  the  history  of  the  long  and  doubtless 
thrilling  lives  of  our  first  parents  and  their  first- 
born son  is  the  single  transgression  of  each,  and  its 
punishment.  The  book  of  Job,  supposed  by  schol- 
ars to  have  been  written  some  3500  years  ago,  and 
to  be  the  oldest  literary  production  in  the  world, 
says,  "  Even  as  I  have  seen,  they  that  plow  iniquity, 
and  sow  wickedness,  reap  the  same  "  (iv.,  8).  St. 
Paul  wrote  in  his  day,  "  for  whatsoever  a  man 
soweth,  that  shall  he  also  reap "  (Gal.  vi.,  7). 
"  Crime  and  punishment  grow  out  of  one  stem. 
Punishment  is  a  fruit  that,  unsuspected,  ripens 
within  the  flower  of  the  pleasure  which  concealed 
it.  Cause  and  effect,  means  and  ends,  seed  and 
fruit,  cannot  be  severed ;  for  the  effect  already 
blooms  in  the  cause,  the  end  pre-exists  in  the  means, 
the  fruit  in  the  seed."1  History,  observation,  and 
the  natural  sense  of  fitness  and  justice  make  pun- 
ishment the  inevitable  retributive  reaction  of  crime. 
The  immutable  law  of  the  conservation  of  energy, 
that  action  and  reaction  are  of  necessity  equal, 

1  Ralph  Waldo  Emerson,  Essays,  vol.  i.,  p.  100. 


Legal  Penalties  1 1 3 

fixes  the  degree  of  the  punishment  which  necessa- 
rily follows  crime. 

The  belief  that  equivalent  compensation  must  of 
necessity  be  made  sooner  or  later  for  sin,  vice,  and 
crime  is,  and  always  has  been,  well-nigh  universal 
and  instinctive.  It  is  a  recognized  law  of  human 
life,  as  inexorable  as  that  fire  will  burn  or  water 
drown,  that  punishment  is  the  sequence  of  violated 
law.  The  parent  punishes  the  child,  the  teacher 
the  pupil,  the  master  the  servant,  the  employer  the 
employee,  trade-unions  their  members,  the  church 
those  under  its  jurisdiction,  the  military  and  naval 
officers  their  subordinates,  all  in  authority  those 
subject  to  them,  by  virtue  of,  and  to  the  extent  of 
their  ability  to  control  and  compel.  So  long  as 
they  do  not  transcend  these  limits  no  one  can  with- 
stand their  right,  or  resist  their  will  in  punishment. 
It  is  a  natural  right  and  supreme  power;  the  only 
way  of  maintaining  the  supremacy  of  law.  When 
the  State  began  to  make  laws,  therefore,  it  de- 
volved upon  it  to  enforce  them  by  penalties.  After 
the  analogy  and  example  of  the  Creator,  and  of 
nature,  it  assumed  the  right  of  inflicting  penalties 
for  the  violation  of  its  laws.  The  right  is  sustained 
by  the  Divine  example,  by  human  experience  and 
reason,  and  by  the  authority  of  the  State,  or  the 
will  of  society.  Our  science  proclaims  it  to  be  a 
positive  deduction  from  scientific  premises,  that 
punishment  is  a  necessary  sequence  of  crime,  an 
essential  element  of  criminal  law,  an  inherent  attri- 
bute of  the  law-making  power. 

8 


ii4  The  Science  of  Penology 


The  abstract  idea  of  justice  must  have  originated 
in  the  observation  of  the  penal  consequences  of 
the  violation  of  natural  laws.  The  righteous  dis- 
position to  follow  the  example  of  the  Creator  in 
the  enactment  of  human  laws  led  to  the  effort  to 
counterbalance  crimes  with  proportionate  penal- 
ties. The  infliction  of  these  penalties  came  to 
be  called  the  administration  of  justice ;  and  the 
reparation  by  the  penalty  was  accepted  as  a  just 
reparation  and  satisfaction  for  the  crime.  "  Even- 
handed  justice  "  was  supposed  to  be  done  by  the 
legal  expiation.  This  supposition  is  now  known 
to  be  incorrect.  It  is  seen  that  the  rational  de- 
mands of  justice  are  rarely  satisfied  by  the  legal 
penalties  of  crimes,  and  indeed  cannot  be  satisfied 
by  any  penalty  which  has  been  exactly  fixed  before- 
hand for  any  crime.  The  principle  of  justice  is  in 
harmony  with  the  law  of  science,  that  the  punish- 
ment must  be  fitted  to  the  criminal,  rather  than  to 
the  crime.  Justice  can  only  be  satisfied  by  ade- 
quate reparation  by  the  individual  criminal,  and  it 
is  not  always  possible  for  him  to  make  adequate 
reparation.  How,  for  example,  could  justice  be 
satisfied  by  any  punishment  which  might  have  been 
inflicted  upon  the  assassin  of  the  great  and  noble 
Lincoln  ?  Or  what  possible  reparation  by  suffer- 
ing could  a  human  brute  be  made  to  render  which 
would  satisfy  the  claims  of  justice  for  the  crime  of 
rape,  and  the  communication  of  a  loathsome,  incur- 
able disease  to  a  pure,  beautiful,  and  cultivated 
maiden  ?  The  observed  effects  of  wrong-doing, 


Legal  Penalties  115 

vice,  and  crime  upon  the  perpetrator  may  have 
engendered  the  idea  of  human  justice,  but  no 
penalties  imposed  by  man  can  be  made  to  satisfy 
its  demands,  nor  can  they  be  rationally  accepted 
as  the  full  expiation  for  crime,  as  Kant  argues. 
The  penalties  which  are  the  sequences  of  crime  are 
just  and  right  as  far  as  they  go,  but  it  is  impossible 
to  escape  the  conviction  that  in  many  cases  the 
immutable  principle  of  justice  demands  and  will 
exact  more  than  can  be  rendered  in  this  life.  This 
impossibility  of  counterbalancing  exactly  any  crime 
by  a  sufficient  penalty  proves  also  the  fallacy  of 
Fichte's  "  Social  Contract "  theory  of  punishment. 
The  element,  of  full  expiation  is  now  excluded  from 
the  punishment  imposed  by  human  law,  which  is 
restricted  to  protecting  society. 

As  the  penalties  which  follow  the  laws  of  God 
and  the  laws  of  nature  are  such  as  secure  their 
observance  by  most  intelligent  creatures,  so  the 
penalties  imposed  by  human  laws  should  be  calcu- 
lated to  enforce  obedience  by  all  who  are  in  gen- 
eral governed  by  rational  motives.  To  this  extent 
legal  punishment  is  a  deterrent  from  crime  and 
possesses  a  utiHtarian  value.  For  a  very  large 
portion  of  humanity  is  undoubtedly  restrained  from 
violation  of  law  by  the  fear  and  dread  of  the  dis- 
grace and  punishment  which  is  the  threatened  pen- 
alty of  transgression.  Many  refrain  from  sin,  vice, 
and  crime  from  what  are  called  conscientious  mo- 
tives, because  they  know  that  their  own  highest 
happiness  will  be  attained  by  living  in  harmony 


n6  The  Science  of  Penology 


with  the  laws  of  God,  nature,  and  society.  They 
live  righteously  for  the  sake  of  righteousness  ; 
others  observe  the  law  for  fear  of  its  penalties. 
The  small  criminal  class  defy  and  violate  religious, 
ethical,  and  social  laws  because  the  fear  of  punish- 
ment is  less  powerful  with  them  than  the  motives 
to  criminality.  They  are  not  controlled  by  the 
influences  and  reasons  which  govern  the  actions  of 
the  majority  of  mankind.  But  the  presence  in 
society  of  a  class  which  is  not  rendered  immune  by 
the  ordinary  and  approved  means  of  moral  sanita- 
tion is  by  no  means  an  argument  for  the  abandon- 
ment of  these  means,  as  has  been  urged  by  some. 
Punishment  cannot  be  abandoned  as  the  main  de- 
terrent agency  of  the  law  because  some  persist 
in  criminality  in  defiance  of  punishment.  No  laws, 
either  of  God,  nature,  or  man,  are  universally 
obeyed.  It  is  to  be  expected  that  only  the  great 
sane  and  sound  majority  of  mankind  will  obey  and 
observe  law  and  respond  to  rational  motives.  The 
abnormal  and  obdurate  class  demands  of  science 
special  additional  treatment.  The  response  to  this 
demand  is  reformation,  the  cure  of  the  abnormal 
and  diseased  condition  which  prevents  obedience  to 
law. 

If  the  character  of  the  criminal  is  so  different 
that  it  refuses  to  respond  to  the  influences  which 
are  sufficient  for  the  restraint  of  the  masses,  it  is 
obvious  that  the  interest  and  duty  of  society  is  to 
cure  its  defects  and  restore  it  to  its  normal  con- 
dition of  submission  to  the  laws  that  govern  society 


Legal  Penalties  117 

in  general.  We  protect  our  water-supply  from 
pollution  as  effectively  as  possible,  but  do  not 
neglect  the  victim  of  typhoid  because  preventive 
efforts  failed  in  his  case.  Experience  has  demon- 
strated the  practicability  of  reforming  the  character 
quite  as  positively  as  it  has  been  inculcated  by  the 
teachings  of  religion  and  morals,  and  as  conclu- 
sively as  it  has  shown  the  impossibility  of  adjusting 
penalties  to  the  infinite  varieties  of  character  and 
crime.  The  office  and  function  of  legal  penalties 
is  to  stop  the  commission  of  crime  by  the  arrested 
criminal,  and  to  promote  obedience  to  the  law  by 
all  others.  Its  chief  purpose  is  not  to  inflict  a 
measure  of  suffering  upon  the  criminal  exactly 
equal  to  the  wrong  done  by  his  crime  to  society  or 
to  an  individual ;  to  exact  a  just  compensation  for 
his  crime  ;  to  satisfy  the  demands  of  justice  ;  to 
wreak  a  proper  vengeance  ;  or  to  frighten  others 
by  its  horrors  from  the  commission  of  similar 
crimes,  all  of  which  experience  has  proven  impos- 
sible. It  is  to  display  the  determination  and  ability 
of  society  to  enforce  and  execute  its  laws,  to  con- 
demn as  hostile  to  the  public  welfare  those  who 
violate  them,  and  to  protect  its  members  in  the  en- 
joyment of  all  their  rights  and  privileges.  When 
this  is  secured  as  a  general  result  it  has  attained 
practical  success. 

The  main  value  of  legal  punishment,  therefore,  is 
economic,  in  its  restraint  of  the  majority  of  men 
from  crime.  Its  actual  benefit  to  society  is  pro- 
portionate to  the  number  who  avoid  it,  rather  than 


n8  The  Science  of  Penology 


to  that  of  those  who  suffer  it,  somewhat  as  its  indi- 
vidual benefit  depends  more  upon  its  certainty  than 
its  severity.  Reduced  to  a  function  of  deterrence, 
it  follows  logically  that  legal  penalties  should  be 
made  as  repugnant  and  obnoxious  as  possible  to 
those  expected  to  be  influenced  by  them, — to  man- 
kind in  general.  The  criminal  class  of  morally  de- 
praved may  be  omitted  from  consideration  in 
this  connection  entirely,  since  it  is  to  be  dealt  with 
on  other  principles.  As  good  citizens  value  their 
character  and  reputation  above  all  else,  conviction 
and  punishment  for  crime  should  make  as  certain 
and  distinct  a  demarkation  between  good  citizen- 
ship and  criminality  as  the  law  can  effect.  The  law 
must  make  crime  odious  and  despicable  ;  and  the 
criminal  be  treated  as  an  anti-social,  depraved,  and 
dangerously  diseased  element  in  society.  Identifi- 
cation with  the  criminal  class  should  be  made  the 
most  dreaded  but  inevitable  penalty  of  crime,  a 
sensible  disgrace  for  all  ranks  and  classes.  Legal 
penalties  are  deterrent  in  proportion  to  the  popular 
estimate  of  the  disgrace  which  pertains  to  them.. 

Reduced  to  these  two  functions, — restraint  of  the 
criminal,  and  deterrence  of  others  from  crime, — the 
problem  of  legal  punishment  or  penalties  is  greatly 
simplified,  and  brought  into  harmony  with  the  hu- 
mane sentiments  of  modern  Christian  civilization. 
After  experimenting  with  almost  every  conceivable 
kind  of  cruelty  in  death  penalties  and  tortures,  a 
full  and  thrilling  narration  of  which  is  to  be  found 
in  Dr.  F.  H.  Wines'  Punishment  and  Reformation, 


Legal  Penalties  119 


Government  now  generally  confines  its  legal 
penalties  to  fines  and  imprisonment,  except  in  the 
case  of  premeditated  murder,  for  which  in  most 
countries  the  death  penalty  is  still  retained. 

The  advantages  which  have  followed  the  aban- 
donment of  severe  and  cruel  penalties,  and  of 
futile  attempts  to  satisfy  the  demands  of  justice  by 
human  law,  have  raised  a  question  whethee  the  Gov- 
ernment ought  to  put  even  murderers  to  death. 
The  death  penalty  has  been  entirely  abolished  in 
the  States  of  Colorado,  Maine,  Michigan,  Rhode 
Island,  and  Wisconsin ;  and  in  seventeen  other 
States  life  imprisonment  may  be  substituted  for  it. 
It  has  been  abolished  also  in  the  Argentine  Re- 
public, Belgium,  Brazil,  Chili,  Costa  Rica,  Guate- 
mala, Holland,  Italy,  Norway,  Portugal,  Russia ;  in 
eight  cantons  of  Switzerland,  and  Venezuela.  Its 
abolition  in  these  States  and  countries  is,  however, 
too  recent  to  supply  any  reliable  data  for  scientific 
conclusions  concerning  the  effect  of  the  change 
upon  the  crime.  There  have  been  apparently 
slight  decreases  in  the  per  capita  number  of  murders 
in  some  countries,  and  increases  in  others, — Italy 
for  one.1  But  these  variations  may  have  resulted 
from  other  causes. 

Dr.  F.  H.  Wines  reports  in  his  Bulletin  on  Pau- 
perism and  Crime  of  the  Eleventh  United  States 
Census  that 

"the   ratio   of   prisoners    charged   with   homicide   in   Rhode 

Island,  where  the  death  penalty  has  been  abolished,  is  lower 

1  The  Criminal.     Drahms. 


120  The  Science  of  Penology 

than  in  other  States  in  the  North  Atlantic  Division,  except  in 
Massachusetts.  The  number  of  executions  in  1889,  as  re- 
ported by  the  sheriffs,  was  relatively  largest  in  the  Western 
Division,  where  it  was  i  in  178,095  of  the  population.  Yet  in 
this  division  the  ratio  of  prisoners  charged  with  homicide  was 
also  greatest.  The  next  largest  ratio  of  executions  to  the 
population  was  in  the  South  Atlantic  (i  in  205,998)  and  in 
the  South  Central  (i  in  215,155)  divisions.  Yet  these  are  the 
divisions  in  which  is  also  found  the  next  largest  ratio  of  pris- 
oners charged  with  homicide.  The  number  of  executions  and 
lynchings  reported  by  the  sheriffs  in  the  Southern  States  is 
identically  the  same." 

The  number  of  homicides  gathered  from  news- 
papers and  reported  by  the  Chicago  Tribune,  and 
the  number  of  executions  and  lynchings,  was  for 
the  specified  years  as  follows  : 

HOMICIDES. 

1882  —  1467  =  1  to  34,189  of  population. 
1890  —  4290=1  to  14,597  of  population. 
1899  —  6225  =  about  i  to  12,000  of  population. 


EXECUTIONS. 


1882  —  121  =  8.25  Per  cent,  of  murders. 
1890  —  102  =  2.37  per  cent,  of  murders. 
1899  —  131  =  2.1  per  cent,  of  murders. 

LYNCHINGS. 

1882  —  117  =  8  per  cent,  of  murders. 
1890  —  126  =  2.93  per  cent,  of  murders. 
1899  —  107  =  1.71  per  cent,  of  murders. 

These  figures  are  approximately  correct,  and  are 
the  most  complete  that  can  be  obtained  for  this 
country.1  They  show  an  alarming  increase  of 

1  See  Appendix  C  for  full  table  of  eighteen  years. 


Legal  Penalties  121 


homicides,  accompanied  by  a  proportionate  de- 
crease of  executions  by  law  and  lynching.  But 
the  immigration  of  the  lawless  from  other  coun- 
tries, the  liberation  of  slaves,  the  settlement  of 
new  localities,  and  other  peculiar  and  temporary 
influences  have  had  a  great  effect  upon  the  in- 
crease of  homicide  ;  while  the  growth  of  popular 
sentiment  against  capital  punishment  has  so- largely 
prevented  the  conviction  and  execution  of  mur- 
derers as  to  almost  nullify  the  deterrent  powers 
of  the  law. 

We  are  therefore  compelled  to  rely  upon  the 
demonstrations  of  reason  rather  than  actual  ex- 
perience for  a  decision  of  the  question  whether 
murderers  should  be  executed.  Applying  the  test 
of  restraint  and  deterrence  as  a  measure  of  the 
utility  of  the  death  penalty  as  compared  with  life 
imprisonment,  the  former  would  seem  to  be  de- 
cidedly the  more  effective.  It  certainly  terminates 
the  career  of  the  criminal  and  prevents  any  repeti- 
tion of  crime  on  his  part.  If  the  life  of  the  mur- 
derer is  extinguished  quietly  and  without  parade 
or  public  notice  by  the  newspapers,  just  as  one 
crushes  the  head  of  a  snake,  or  shoots  a  mad  dog 
to  rid  society  of  a  danger,  the  death  penalty  will 
certainly  be  more  deterrent  to  the  criminal  class 
than  any  other.  The  sentence  of  life  imprison- 
ment always  carries  a  hope  of  escape  or  pardon. 
So  far  as  the  deterrent  effect  of  either  penalty  in 
the  prevention  of  murders  is  concerned,  there  is 
no  good  reason  for  believing  that  this  crime  can 


122  The  Science  of  Penology 

be  much  restricted  by  any  legal  penalty.  Murder 
is  incited  by  passions  and  circumstances  which 
override  all  restraints.  The  murderer  has  no  fear 
of  the  law  of  God  or  man  before  his  eyes,  nor  does 
he  consider  beforehand  the  consequences  of  his 
act.  Whatever  protection  society  can  obtain  must 
be  secured  by  the  universal  prevalence  of  a  con- 
viction in  the  minds  of  men  that  the  crime  of  de- 
stroying the  life  of  a  human  being  is  so  heinous, 
monstrous,  and  irreparable,  that  every  one  will  be 
vitally  interested  in  immediately  depriving  the  per- 
petrator of  the  power  of  repeating  it. 

Human  law  is  the  legal  enactment  of  public  opin- 
ion. Life  is  the  one  sacred,  essential,  invaluable  pos- 
session of  man.  Once  taken  it  can  never  be  restored. 
No  mistakes  of  judges,  or  witnesses,  or  lawyers,  or 
juries,  can  ever  be  rectified  after  the  convict  is  ex- 
ecuted ;  and  it  is  known  that  innocent  men  have 
been  not  infrequently  executed.  Public  sentiment, 
therefore,  revolts  against  the  condemnation  of  a 
fellow  creature  to  death,  even  for  murder.  It  is 
reluctant  to  take  away  that  which  it  can  never  re- 
store ;  to  kill  a  man  in  order  to  impress  society  with 
the  sacredness  of  life.  This  is  why  murderers  are 
allowed  to  escape  the  death  penalty,  and  why  the 
laws  fail  to  restrict  murders.  The  death  penalty  is 
no  longer  an  enactment  of  public  opinion.  It  is  a 
fictitious  law,  which,  by  the  constant  refusal  of 
the  public  to  enforce  it,  rather  encourages  murder 
by  stimulating  a  hope  of  escape  in  the  mind  of  the 
criminal,  instead  of  deterring  from  action.  It  has 


Legal  Penalties  123 

become  in  fact  as  obsolete  and  ineffectual  for  mur- 
der as  it  has  for  minor  crimes.  The  protection  of 
society  imperatively  demands,  therefore,  the  im- 
mediate repeal  of  the  death  sentence,  and  the  sub- 
stitution of  life  imprisonment,  with  the  pardoning 
power  carefully  and  narrowly  restricted,  so  that  its 
exercise  may  be  hoped  for  only  when  innocence  is 
positively  discovered,  or  for  extenuating  circum- 
stances, or  for  supreme  reasons  of  life  and  death 
urgency.  Such  a  law  will  be  in  itself  an  impressive 
evidence  of  the  social  estimate  of  the  sanctity 
of  human  life.  The  total  abolition  of  the  death 
penalty  has  been  urged  by  many  of  the  ablest 
statesmen,  jurists,  and  philanthropists  for  the  last 
century ;  penological  science  now  confirms  their 
judgment. 

For  the  crimes  of  rape,  incest,  sexual  intercourse 
with  the  imbecile,  insane,  drunken,  or  drugged,  and 
sodomy,  nature  offers  the  most  effective  means  of 
restraint  and  deterrence  by  the  castration  of  the 
convict.  Science  prescribes  this  as  a  positive  pre- 
ventative  of  repetition,  and  of  the  propagation  of 
depraved  offspring.  It  is  the  most  appropriate  and 
adequate  punishment,  and  the  most  powerful  deter- 
rent which  can  be  devised,  because  of  its  influence 
both  upon  the  criminal  class  and  upon  society  in 
general.  The  greater  the  disposition  toward  such 
crimes,  the  stronger  the  sexual  passion,  the  more 
dreadful  would  the  penalty  of  the  crime  appear  ;  so 
that  this  penalty  will  adapt  itself  to  the  varying  needs 
of  every  case  more  completely  than  any  other  which 


124  The  Science  of  Penology 


can  be  employed.  An  inordinate  indulgence  of 
sexual  passion  both  induces  and  excites  desire  be- 
yond rational  control  and  weakens  the  natural 
powers  of  restraint.  These  crimes  are  the  infallible 
symptoms  of  such  a  perversion  and  incurable  ma- 
lignity of  sexual  passion  as  to  indicate  unmistak- 
ably the  necessity  of  surgical  treatment.  Such 
criminals  have  passed  beyond  correction  by  thera- 
peutic means.  Surgical  science  and  skill  is  as 
necessary  in  such  cases  as  in  the  forcible  amputa- 
tion of  a  gangrened  limb.  It  is  now  possible  to 
remove  the  organs  which  cause  the  offense  with 
slight  pain  and  entire  safety,  so  there  can  be  no 
constitutional  objection  on  account  of  cruelty, 
and  under  a  law  this  penalty  would  not  be  unusual. 
This  done,  the  criminal  is  permanently  incapaci- 
tated from  repeating  the  offense  and  is  severely 
and  appropriately  punished.  The  laws  of  nature 
and  society  will  thus  have  been  rationally  vindi- 
cated and  the  most  effectual  warning  administered 
to  society  against  future  crimes  of  this  kind.  This 
is  the  natural  and  just  reaction  of  their  crimes. 
Indemnity  to  the  injured  or  the  State  is  to  be 
secured  by  the  enforced  labor  of  the  convict. 

Cowardly  and  brutal  assaults  upon  women,  wife- 
beating,  cruelty  to  animals,  and  all  acts  indicating 
such  a  bestial  disposition  as  is  not  amenable  to 
rational  and  moral  influences,  are  best  to  be  re- 
pressed by  physical  appeals.  There  are,  both  in 
prison  and  out,  some  persons  so  insensible  to  ordi- 
nary punishment  that  they  can  only  be  affected  by 


Legal  Penalties  125 

physical  pain.  For  such  and  for  many  juvenile 
delinquents  a  good  whipping  is  the  best  penalty. 
Judiciously  administered,  it  imparts  a  realizing 
sense  to  the  offender  of  the  criminality  of  his  deed, 
and  the  power  of  law,  fitting  the  punishment  to  the 
crime,  and  exercising  the  strongest  deterrence  upon 
those  of  similar  natures. 

The  perpetration  of  all  other  high  crimes  or 
felonies  which  are  of  a  sinful  or  vicious  nature  our 
science  now  regards  as  a  certain  symptom  of  in- 
ferior character  in  the  criminal,  which  will  not 
naturally  adjust  itself  to  its  social  environment. 
The  aspect  which  crime  presents  to  the  law-making 
and  executing  power  is  that  of  a  nuisance  which 
must  be  abated.  Imprisonment,  therefore,  is  the 
necessary  and  natural  penalty  for  such  crimes  as 
indicate  moral  depravity,  defect,  or  disease,  and  it 
is  specified  now  in  the  criminal  codes  with  defined 
limits  for  various  crimes.  There  is  no  other,  where 
it  is  wisely  imposed,  that  so  well  fulfils  the  legiti- 
mate purpose  of  a  penalty.  The  only  scientific 
objection  to  it  is  on  account  of  the  false  basis  of 
punishment  upon  which  its  length  is  limited  by  the 
codes,  and  the  notion  that  any  positive  limitation 
of  time  is  practicable  or  legitimate  in  any  case. 

Admitting  the  principle  that  the  only  proper 
object  of  human  law  is  the  protection  of  society, 
and  that  the  sole  purpose  of  penalties  for  crime  is 
the  prevention  of  a  repetition  of  crime  by  the 
offender  and  the  deterrence  of  others  from  of- 
fenses, there  is  no  escape  from  the  logical,  rational, 


126  The  Science  of  Penology 

and  scientific  deduction  that  every  real  criminal 
must  be  confined  in  prison  so  long  as  he  would  be 
dangerous  if  at  large.  Having  once  incurred  the 
damage  of  his  crime  and  the  expense  of  his  detec- 
tion, arrest,  trial,  and  conviction,  the  State  cannot 
afford  to  let  him  loose  again  upon  society  until  it 
has  been  proved  that  he  is  no  longer  dangerous. 
It  has  been  positively  demonstrated,  however,  that 
simple  penal  incarceration,  conducted  with  either 
rigorous  severity  or  humane  gentleness,  confirms 
and  renders  chronic  the  criminal  character  instead 
of  curing  it.  Imprisonment  as  a  punishment  has 
no  remedial  value.  Ninety  per  cent,  of  the  con- 
victs discharged  from  prison  return  to  criminal 
lives.  These  are  facts  abundantly  substantiated 
by  the  experience  of  the  last  fifty  years  since  in- 
carceration has  been  under  trial  as  a  punishment. 
The  protection  of  society  then  requires  that  the 
criminal  shall  be  sentenced  to  prison  for  life ;  that 
is,  for  his  criminal  life.  But  experience  has  de- 
monstrated that  a  large  proportion  of  criminals 
can  be  cured  of  their  criminality  by  a  scientific 
treatment  of  their  diseased  character  while  in  con- 
finement. Eighty-three  per  cent,  of  the  convicts 
confined  in  the  reformatory  prison  at  Elmira  during 
the  last  twenty-five  years,  even  under  sentence  with 
a  maximum  limit,  are  reported  to  have  been  re- 
stored to  honest  and  industrious  lives.1  Doubtless 
a  larger  per  cent,  might  have  been  cured  if  the 
treatment  could  have  been  longer  in  the  more 

1  See  Year  Book  of  Elmira  Reformatory,  1899. 


Legal  Penalties  127 

severe  cases.  The  life  sentence,  then,  is  not  with- 
out hope  if  the  criminal  is  confined  where  he  can 
receive  curative  treatment.  Imprisonment  in  a 
scientifically  conducted  reformatory  for  life  is  not 
only  not  hopeless — it  is  not  even  a  severe  penalty, 
for  it  places  the  responsibility  of  release  on  the 
shoulders  of  the  convict  himself.  It  puts  the  key 
of  his  prison  door  in  his  own  hands  and  commands 
him  to  work  out  his  own  freedom  if  it  be  in  him. 
The  State  deprives  him  of  his  liberty  but  provides 
for  him  every  appliance,  every  educational,  curative, 
and  reformatory  advantage  which  science  can  de- 
vise for  his  assistance.  Skilled  doctors  study  his 
disease,  prescribe  and  administer  the  remedies.  He 
enjoys  privileges  and  opportunities  which  few  of 
those  outside  of  the  prison  can  have.  The  most 
perfect  appliances  of  the  modern  moral  hospital  are 
his  without  cost ;  so  that  his  sentence  is  the  greatest 
benefit  which  can  be  conferred  upon  him  rather 
than  a  cruel  punishment  for  his  evil  deed. 

Having  adopted  imprisonment  as  the  penalty  for 
felonies,  science  requires  the  State  to  provide  re- 
formatory prisons  for  the  Jirst  confinement  of  her 
convicts,  and  that  they  shall  be  sentenced  to  such 
reformatories  under  an  indeterminate  sentence. 
There  will  of  course  be  some  chronic,  incorrigible 
criminals  who  cannot  be  restored  to  liberty  even 
after  the  most  exhaustive  and  persistent  treatment. 
As  soon  as  it  can  be  decided  that  the  disease  of  a 
convict  in  the  reformatory  is  so  obdurate  and  deep- 
seated  as  to  be  incurable,  provision  must  be  made 


128  The  Science  of  Penology 

by  law  for  his  removal  to  a  penitentiary  intended 
solely  for  secure  confinement  and  economical  main- 
tenance, where  he  can  spend  his  remaining  days  in 
useful  employment.  This  will  dispose  of  all  the 
more  dangerous  in  the  criminal  class,  the  insane, 
habitual,  and  instinctive  categories,  and  dispose 
of  them  completely  and  permanently.  They  com- 
prise, as  we  have  shown,  about  half  in  number  of 
the  criminal  class  and  constitute  the  part  which  is 
by  far  the  most  to  be  feared  and  most  troublesome 
to  control.  It  is  an  entirely  practicable  solution  of 
the  most  urgent  part  of  the  problem. 

There  remain  only  the  categories  of  "  First 
Offenders  "and  "Misdemeanants"  who  are  liable 
to  legal  penalties  to  be  dealt  with.  If  by  laxity  of 
police  administration,  or  miscarriage  of  criminal 
jurisprudence,  a  first  conviction  should  happen  to 
occur  for  a  felony  or  heinous  crime,  the  culprit 
would  naturally  be  referred  to  the  category  of  "  In- 
stinctive Criminals,"  and  become  subject  to  the 
rules  established  for  them.  Scientific  Penology  pre- 
scribes for  the  actual  "  First  Offender"  an  entirely 
different  course  of  treatment.  The  first  offense  is 
assumed  to  be  a  premonitory  symptom  of  a  ten- 
dency to  the  criminal  disease,  rather  than  a  positive 
evidence  of  its  presence.  It  suggests  preventive 
rather  than  curative  therapeutics,  hygienic  instead 
of  hospital  treatment.  Brief  confinement  in  a  house 
of  refuge,  jail,  or  prison,  in  association  with  the 
criminal  social  refuse  gathered  there,  is  certain  to 
establish  and  confirm  the  hold  of  the  disease  upon 


Legal  Penalties  129 

the  character.  The  dangers  and  evils  of  imprison- 
ment under  the  present  method  greatly  outweigh 
any  possible  good  to  be  hoped  for  from  it.  Nor  is 
the  imprisonment  of  the  first  offender  necessary  for 
the  social  defense,  for  the  restriction  of  crime  or 
deterrence  from  it,  because  this  may  be  better 
attained  in  other  ways.  It  may  be  stated  as  a  pe- 
nologic  law,  that  temporary  imprisonment  must 
never  be  imposed  as  a  penalty  when  any  other 
can  be  made  to  satisfy  the  conditions.  The  stigma 
of  the  prison,  the  corruption  of  the  associa- 
tions, the  long  days  of  idleness,  the  physical  deteri- 
oration, work  a  speedy  and  total  ruin  of  the  tainted 
character. 

"  The  prison  from  every  point  of  view  is  the  chief  ostensible 
promoter  of  every  ill  it  essays  to  cure."  "  It  succeeds  in 
turning  out  more  direct  results  in  the  shape  of  confirmed 
criminals,  hardened  to  the  contemplation  of  theoretic  vice  in 
all  its  forms  and  degrees,  ready  to  put  their  knowledge  into 
practice,  than  any  other  accredited  agency  within  the  range  of 
experience  or  devised  by  the  folly  of  man."  ' 

It  is  the  unanimous  opinion  of  all  who  have  given 
intelligent  consideration  to  the  matter  that  a  short 
term  of  imprisonment  in  the  ordinary  jail  or  peni- 
tentiary is  the  most  pernicious  penalty  which  the 
law  can  use,  a  stultification  of  justice,  a  parody  of 
crime  by  the  State.  The  slight  offense  of  the  "  First 
Offender,"  which  does  not  positively  indicate  a  con- 
dition of  moral  depravity,  inflicts  an  injury  either 
upon  an  individual  or  upon  the  State.  An  enforced 

1  The  Criminal,  Drahms,  p.  193,  and  Dr.  Eugene  Smith  on  County  Jails, 
National  Prison  Association,  1885. 


130  The  Science  of  Penology 

indemnification  of  the  injured  party  by  the  offender 
which  will  make  the  cost  of  the  offense  exceed  the 
expected  satisfaction  from  it,  is  a  penalty  which  ful- 
fills the  rational  object  of  a  penalty  without  the  ob- 
jectionable features  of  imprisonment.  It  relieves 
the  State  from  the  obligation  of  providing  comfort- 
able quarters  and  subsistence  as  an  invitation  to  and 
reward  for  petty  misdemeanors,  and  from  the  ab- 
surdity of  offering  a  more  attractive  method  of 
livelihood  than  self-support  by  honest  labor.  As  the 
State  has  accepted  the  duty  of  protecting  its 
citizens  from  crime,  it  must  certainly,  so  far  as  it 
is  able,  make  this  protection  complete.  Having 
arrested  the  offender,  it  is  in  its  power  to  exact  in- 
demnification to  the  full  ability  of  the  offender  to 
make  it,  and  it  must  exact  it.  If  the  offender  has 
property  or  means  to  satisfy  the  injured  party,  the 
law  should  give  the  claim  of  the  State  a  prior 
lien  to  that  extent,  by  virtue  of  the  criminal 
conviction,  and  without  the  necessity  of  civil 
proceedings  with  legal  costs,  which  in  a  ma- 
jority of  cases  prevent  the  attempt  to  secure  in- 
demnity in  the  civil  courts.  The  sentence  for  the 
crime  should  fix  the  indemnity,  and  prescribe  the 
method  of  its  collection.  If  it  can  be  rendered  only 
by  labor,  as  will  frequently  occur,  the  State,  being 
responsible  for  the  injury  to  its  citizens  because  of 
its  failure  to  protect  them,  must  assume  the  indem- 
nification of  the  injured,  and  proceed  to  recoup 
itself  from  the  wages  or  services  of  the  offender. 
When  the  offender  is  too  young  to  make  this  resti- 


Legal  Penalties  131 

tution  himself  it  should  be  exacted  of  parents,  or 
other  responsible  relatives  or  guardians,  who  should 
thus  be  compelled  to  control  their  children.  If 
there  are  none  from  whom  such  exaction  can  be 
made,  the  State  must  assume  parental  care  by  a  pro- 
bation officer.  Juvenile  offenders  are  more  fully 
considered  in  another  chapter.  The  indemnification 
must  be  prompt  and  full  ;  the  injured  should  not  be 
compelled  by  the  State  to  suffer  additional  loss  and 
damage  by  delay ;  and  it  must  be  proportioned  ac- 
cording to  the  ability  of  the  offender  to  pay,  or  to 
work  it  out.  The  offender  must  work  under  the 
surveillance  of  the  officers  of  the  law  and  refrain 
from  crime,  vice,  and  disorder,  until  the  demands  of 
the  law  are  satisfied.  If  the  offense  was  against  the 
State  or  social  order,  the  measure  of  social  damage 
should  be  fixed  and  collected  by  the  law.  Fines  col- 
lected by  the  State  should  constitute  a  special  fund 
for  the  payment  of  indemnities  to  individuals,  and 
the  expense  of  detecting  crime.  Such  a  penalty 
receives  the  approval  of  the  popular  sense  of  justice, 
restrains  the  well-to-do  from  violation  of  law  by 
the  fear  of  having  to  make  strict  restitution,  and  the 
penniless  by  the  dread  of  compulsory  labor  for  the 
benefit  of  others.  By  its  palpable  justice  it  removes 
many  difficulties  which  now  interfere  with  the  de- 
tection and  conviction  of  offenders.  The  -argu- 
ments and  authorities  which  sustain  the  principle  of 
indemnification  are  fully  and  conclusively  presented 
by  Professor  Ferri l  and  Dr.  Drahms.2 

1  Criminal  Sociology,  p.  218.  *The  Criminal,  p.  351. 


i32  The  Science  of  Penology 


This  scheme  of  legal  penalties  reduces  their 
number  for  all  crimes  against  the  person,  property, 
and  the  State,  below  murder  and  the  grossest  sex- 
ual crimes,  to  these  two,  the  indeterminate  sentence, 
and  indemnification.  The  first  requires  the  institu- 
tion of  suitable  reformatories,  the  second  a  provi- 
sion of  legal  probation  officers,  to  watch  over  and 
collect  the  indemnities  from  offenders  at  large  in 
society.  It  secures  the  greatest  efficiency  to  criminal 
law,  minimizes  the  cost  of  its  execution,  relieves 
judges  from  many  embarrassing  responsibilities, 
and  satisfies,  so  far  as  is  possible  by  human  law, 
the  demands  of  justice. 


CHAPTER  VIII. 

THE  INDETERMINATE  SENTENCE. 

Substitution  of  Reformation  for  Punishment — Origin  and  Development  of 
the  Reformatory  System — Comparison  of  Results  at  Elmira  and  in 
New  York  Prisons — Success  of  Reformatory  System  Demonstrated  by 
Z.  R.  Brockway — His  Statement  of  its  Principles — Punishment  by  Re- 
formation the  Natural  Reaction — The  Theory  of  Reformation  is  the 
Cure  of  Disease — Time  Limits  for  Cure  Absurd — Varieties  of  the  Dis- 
ease— State  of  Opinion  in  the  World  Concerning  the  Indeterminate 
Sentence — Physical  Obstacles  to  its  Adoption — Metaphysical  Obstacles 
— What  the  Real  Indeterminate  Sentence  is — Who  shall  Pronounce  the 
Cure? — Existing  Practice  Devolves  the  Decision  on  Wardens — Objec- 
tions— Advantages — Objections  to  Reformatory  System  Considered — 
The  Tribunal  of  Discharge  and  Appeal — To  Whom  the  Sentence 
should  be  Applied. 

"HPHE  reformatory  system  marks  a  new  era  in 
1  the  development  of  Penology  in  the  United 
States.  The  classification  of  crimes  and  the  im- 
position of  penalties  based  on  the  purely  punitive 
idea,  in  which  so  much  suffering  is  meted  out  for  a 
particular  offense,  rest  on  a  false  conception  and 
must  ultimately  give  way  to  the  more  scientific 
principle  involved  in  the  indeterminate  sentence."  1 
This  principle  is  no  longer  novel  or  experimental, 
although  it  has  never  yet  been  fully  adopted  or 
tested  in  any  State  as  the  basis  of  its  criminal  code. 

1  The  Reformatory  System  of    the   United  States,   International  Prison 
Commission,   1900,  S.  J.  Barrows,  pp.   14  and  15. 

133 


134  The  Science  of  Penology 


To  Mr.  Z.  R.  Brockway  belongs  the  honor  of  hav- 
ing proposed  the  substitution  of  this  idea  for  that 
of  the  fixed  penalty,  while  director  of  the  House  of 
Correction  in  Detroit,  Michigan,  in  1867.  He 
then  procured  legislation  to  govern  that  institution 
which  contains  the  germ  afterward  developed  in 
the  law  he  drafted  for  the  Elmira  Reformatory  in 
1876.  There  he  tested  and  demonstrated  for  a 
quarter  of  a  century  the  practicability  and  advan- 
tages of  the  reformative  process  more  decisively 
than  any  other  man  or  institution  in  the  world. 
To  him  is  due  the  credit  of  having  not  only  prac- 
tically invented,  but,  what  is  much  more  difficult, 
proved  by  actual  use,  the  inestimable  value  of  the 
indeterminate  sentence.  His  successful  introduc- 
tion of  his  invention  has  revolutionized  Penology 
as  positively  as  the  invention  of  the  Bessemer  pro- 
cess revolutionized  iron-making,  and  with  econom- 
ical results  which  promise  to  be  equally  important 
sociologically  with  those  which  have  followed  that 
epoch-making  invention.  For  humanity  may  profit 
quite  as  much  by  wise  economy  in  the  use  of  its 
resources  as  in  increased  capacity  of  production  ; 
by  conservation  as  much  as  by  development  of 
energy. 

Mabillon,  a  famous  Benedictine  monk,  Abbe  of 
Saint-Germain  in  Paris,  who  was  born  in  1632  and 
died  in  1 707,  one  of  the  most  learned  men  of  the 
day  of  Louis  XIV.,  foreshadowed  many  of  the 
features  of  modern  prison  discipline  and  of  prison 
labor,  and  discussed  in  his  dissertations  the  matter 


The  Indeterminate, Sentence          135 


of  reformation  in  prison  discipline.  Clement  XI. 
built  St.  Michael's  at  Rome  in  1704,  and  placed  over 
the  entrance  this  inscription:  "Clement  XL,  Su- 
preme Pontiff,  reared  this  prison  for  the  reforma- 
tion and  education  of  criminal  youths,  to  the  end 
that  those  who,  when  idle,  had  been  injurious  to 
the  State,  might,  when  better  instructed  and  trained, 
become  useful  to  it." 1  Viscount  Vilain  XIV., 
Burgomaster  of  Ghent,  "  is  justly  entitled  the  father 
of  modern  penitentiary  science."2  Both  Captain 
Alexander  Machonochie  at  Norfolk  Island,  and 
Archbishop  Whately  of  Dublin  in  1832,  suggested 
labor  sentences  in  place  of  time  sentences ;  and 
most  scientific  students  of  criminology  during  the 
last  quarter  of  the  nineteenth  century  have  advo- 
cated by  voice  and  pen  the  adoption  of  the  prin- 
ciple of  reformation  and  its  necessary  corollary, 
the  indeterminate  sentence ;  but  the  name  of 
Z.  R.  Brockway  will  always  be  illustrious  in  history 
as  that  of  the  man  whose  life-work  was  the  first 
successful  demonstration  of  a  practicable  method 
of  reforming  the  criminal. 

Of  the  6190  convicts  paroled  from  the  Elmira 
Reformatory  previous  to  September  30,  1899,  he 
estimates,  in  his  report  for  that  year,  that  5164,  or 
83.4  per  cent.,  were  permanently  reformed  and  re- 
stored to  useful  and  honest  citizenship.  Of  the 
2089  convicts  received  in  the  Sing  Sing,  Auburn, 
and  Clinton  prisons  during  the  year  ending  Sep- 

lDr.  Carroll  D.  Wright,  Report  of  National  Prison  Association,  1899,  p. 
2ii.  *  Punishment  and  Reformation,  p.  136. 


The  Science  of  Penology 


tember  30,  1898,  949,  or  45.4  per  cent.,  were  re- 
corded as  recidivists.1  There  were  1556  convicts 
discharged  from  these  prisons  in  that  year ;  a  num- 
ber 533  less  than  that  of  those  received,  of  whom 
it  may  be  assumed  that  as  all  have  been  stigma- 
tized as  criminals,  and  no  effective  effort  made  for 
their  reformation,  because  experience  proves  this 
to  be  almost  hopeless  in  prison,  at  least  80  per 
cent.,2  or  1245,  returned  to  criminal  practices  and 
lives.  But  if  the  6190  convicts  paroled  from  El- 
mira  had  been  discharged  from  prisons  and  only 
45.4  per  cent,  of  them  had  returned  to  criminality, 
according  to  the  proportion  of  recidivists  in  the 
prisons  of  New  York,  these  would  have  numbered 
2810  instead  of  1026.  That  is,  Mr.  Brockway, 
his  invention,  and  his  institution,  have  effected  an 
economical  saving  to  the  State  of  New  York  of 
1784  good  citizens,  worth,  at  $2000  each,3  $3,568,- 
ooo.  Besides,  there  has  been  saved  an  annual  cost 
of  $150  each  for  their  maintenance  as  convicts, 
which  for  an  average  of  6.4  years  (the  average 
length  of  sentence,  exclusive  of  life  sentences,  of 
the  3033  convicts  in  the  three  prisons  September 
30,  1898)  amounts  to  $1,712,640.  This  takes 
no  account  of  the  saving  of  the  losses  by  crime, 
the  costs  of  detection,  arrest,  trial,  and  conviction. 
Deducting  the  $150  maintenance  cost  from  the 
$1500  estimated  cost  of  every  convict  to  the  State 

1  Report  of  State  Prisons  for  iSg8. 

9  The  Reformatory  System  in  the  United  States,  1900,  p.  19. 

8  Prisoners  and  Paupers,  p.  149. 


The  Indeterminate  Sentence          137 


made  in  Chapter  I.,  we  should  add  $1350  apiece 
to  these  sums,  or  $2,408,400.  Thus  the  cash  value 
of  Mr.  Brockway's  service  to  the  State  of  New 
York  for  the  last  twenty-five  years  makes  the  grand 
sum  of  $7,689,040;  an  average  of  $307,560  per 
annum.  Assuming  a  probable  recidivism  of  80 
per  cent,  among  discharged  convicts  to  be  correct, 
this  saving  by  the  same  method  of  calculation  has 
been  $16,881,800. 

But  Mr.  Brockway  has  asked  for  no  letters 
patent  upon  his  invention  to  limit  its  use  in  any 
manner  ;  on  the  contrary,  he  has  labored  with  great 
ability  and  the  most  generous  philanthropy  to  per- 
suade others  to  adopt  and  profit  by  it  with  entire 
freedom.  He  had  absolute  confidence  in  his  theory 
of  reformation,  a  marvellous  genius  for  compre- 
hending the  means  essential  to  effect  it,  and  a 
peculiar  God-given  personal  magnetism,  grace,  in- 
fluence, or  whatever  we  may  term  that  power  which 
accompanies  complete  devotion  to  a  lofty  and  noble 
purpose.  Thus  he  was  enabled  to  secure  and  use 
the  necessary  means  to  inspire  hope  in  the  most 
depraved  of  his  subjects,  to  enlist  the  enthusiastic 
co-operation  of  his  assistants  and  associates,  and  to 
expound  and  impress  his  convictions  on  others. 
He  has  endeavored,  by  writing  and  speaking  on  all 
suitable  occasions  for  more  than  twenty-five  years, 
to  promote  the  substitution  of  intelligent  science 
for  brutal  penalties  in  dealing  with  criminals.  In 
the  change  of  base  from  punishment  to  reforma- 
tion his  achievements  equal  those  of  John  Howard 


138  The  Science  of  Penology 

in  philanthropy,  and  exceed  them  in  originality, 
importance,  and  economic  value.  No  philanthro- 
pist in  America  has  better  earned  the  title  of  pub- 
lic benefactor  than  Z.  R.  Brockway. 

A  change  from  the  punitive  to  the  reformative 
system  in  dealing  with  criminals  does  not  betoken 
a  disposition  to  derogate  from  the  immutable  and 
divinely  ordained  law  of  compensation  and  punish- 
ment for  crime.  There  is  no  better  statement  of 
the  position  of  modern  penologists  than  that  made 
by  Mr.  Brockway  himself. 

"  The  reformatory  prison  system  belongs  to  the  school  of 
the  utilitarians  and  experimentalists.  It  is  ranged  under  a 
motto  which  reverses  that  of  the  classical  school  of  penolo- 
gists, its  motto  being  '  Prevention  the  principle,  punishment 
the  incident.'  It  seeks  the  public  protection  through  the  re- 
formation of  criminals,  and  counts  it  of  small  moment  whether 
the  prisoner  undergoing  the  reformative  process  is  pleased  or 
displeased  thereat.  It  is  held  by  the  advocates  of  this  system 
that  all  the  ends  sought  by  punishment  for  crimes,  by  all  the 
schools,  are  best  attained  when  protection  by  reformation  con- 
stitutes the  whole  purpose  and  method  of  prison  treatment  ; 
and  that  by  this  means  there  is  incidentally  reached  the  near- 
est possible  realization  of  justice,  the  equitable  adjustment  of 
pain  to  sin.  The  real  reformation  demanded  by  this  reforma- 
tory system  is  necessarily  a  rigorous  experience  for  prisoners  ; 
so  irksome  that  they  would  scarcely  choose  it,  yet  because  the 
purpose  of  it  is  to  accomplish  a  remedial  result,  it  can  scarcely 
be  considered,  either  by  the  subject  of  such  experiences  or  by 
the  observer,  as  an  unjust  penalty.  The  just  retribution  for 
crime  or  sin  is  always  the  necessary  cost,  to  the  criminal  or 
the  sinner,  of  recovery. 

"  The  principles  of  treatment  thus  adopted  are  applicable  to 
all  grades  of  criminals,  misdemeanants,  and  felons,  whether 


The  Indeterminate  Sentence          139 


they  are  estimated,  at  conviction,  as  corrigible  or  incorrigible. 
It  is  a  self-evident  proposition  that  the  criminal  shut  up  for 
the  public  protection  should  remain  restrained  of  liberty  until 
he  is  so  changed  of  character  as  to  be  reasonably  safe  for 
release.  The  prisoners  are  taken  into  the  custody  of  the 
State  because  they  were  adjudged  to  be  dangerous  if  at  large. 
During  their  imprisonment  they  are  to  be  transformed  into 
safe  citizens  of  the  State.  This  is  reformation  in  the  State 
sense  of  the  term.  What  more  can  the  State  desire  or  require 
than  that  criminals,  when  released  from  prison,  shall  obtain 
legitimately  the  means  of  their  subsistence  and  satisfaction, 
and  in  all  respects  obey  the  laws  ?  What  less  should  the  State 
demand  ?  Let  the  comparative  value  of  prison  systems  be 
judged  by  this  standard  and  their  method  by  this  result.  If 
such  reformations  are  best  wrought  out  by  retributive  punish- 
ments, that  method  should  be  pursued.  If  by  penitence,  the 
product  of  presenting  the  religious  motive  and  the  influence 
of  personal  persuasion,  then  make  the  most  of  moral  and  re- 
ligious ministrations  ;  and  if  such  an  actual  change  of  life  and 
social  relations  can  be  promoted  by  wise  training  of  prisoners 
in  their  behavior,  their  moods  and  moral  tendencies  not 
only,  but  also  a  worldly  training  in  industry,  economy,  in 
intelligence  and  self-regulation,  then  despise  not  and  neglect 
not  such  an  agency."  1 

The  suitable  punishment  is  inflicted  by  the  se- 
verity and  duration  of  the  disciplinary  training 
required  to  transform  the  criminal  into  a  safe  citi- 
zen. This  severity  and  duration  will  naturally 
proportion  its  reaction  to  the  degree  of  depravity 
or  criminality  of  the  prisoner.  The  greater  the 
criminality  the  longer  will  be  the  time  required 
for  reformation,  and  the  more  repugnant  and  griev- 
ous will  be  the  necessary  discipline.  There  is  no 

1  The  Reformatory  System  in  the  United  States,  1900,  p.  22. 


140  The  Science  of  Penology 


remission  or  decrease  of  punishment  by  the  adop- 
tion of  the  reformatory  principle,  but  rather  the 
substitution  of  an  exact  adjustment  of  the  degree 
of  punishment  to  the  degree  of  guilt  by  nature, 
as  the  time  required  for  reformation  varies  accord- 
ing to  the  obduracy  of  the  case,  in  the  stead  of  the 
arbitrary  guess  of  various  magistrates. 

The  reformatory  system  is  based  upon  the  de- 
monstration of  the  science  of  criminology  that  the 
character  of  the  person  who  commits  a  crime  is  differ- 
ent from  that  of  an  honest  person.  Stated  in  this 
concise  form  the  fundamental  proposition  does  not 
appear  to  require  the  support  of  proofs,  but  is  ac- 
cepted by  the  reason  as  axiomatic.  Science,  how- 
ever, penetrates  into  the  details  of  the  difference 
between  criminality  and  honesty  of  character,  and 
discloses  the  causes,  symptoms,  and  nature  of  this 
difference.  Its  discoveries  confirm  the  theological 
dictum  that  the  original  normal  man  was  a  perfect 
organism,  physically,  mentally,  and  morally,  whose 
actions  and  functions  were  naturally  healthy  and 
correct.  Disease,  defects,  error,  vice,  and  crime,  are 
results  of  deviations  or  aberrations  from  the  normal 
type  of  organism  which  can  be  largely  corrected  by 
intelligent  treatment.  Criminality  or  moral  de- 
pravity is  one  of  these  imperfections  or  diseases, 
which  abundant  experience  at  Elmira  and  elsewhere 
has  proved  to  be  quite  as  responsive  and  subject  to 
therapeutics  as  any  which  science  has  subdued. 
Failures  of  reformatory  measures  in  the  past,  it  is 
understood,  have  been  quite  as  generally  due  to  lack 


The  Indeterminate  Sentence          141 


of  a  proper  understanding  of  the  case  by  the  reformer 
as  to  the  obduracy  of  the  patient ;  failures  of  refor- 
mation of  criminals  by  the  State  chiefly  to  what  is 
now  recognized  as  the  absurd  limitation  of  the 

o 

duration  of  treatment  by  law,  the  definite  time  limit 
of  sentences.  The  acceptance  of  the  reformative 
motive,  instead  of  the  solely  punitive,  of  necessity 
involves  the  removal  of  maximum  time  limits  from 
all  sentences. 

"  The  indeterminate  sentence  treats  the  criminal  as  belong- 
ing to  the  defective,  abnormal  classes  who  are  the  wards  of  the 
Government.  By  the  true  psychology  of  crime,  the  criminal 
demands  governmental  care  and  treatment  on  the  same 
grounds  with  the  lunatic,  the  idiot,  the  blind,  and  the  dumb. 
He  is  a  defective,  mal-developed,  abnormal  being,  differing 
from  the  other  classes,  which  are  more  distinctly  recognized  as 
the  defective  classes,  in  two  particulars.  It  is  more  dangerous 
to  the  community  that  he  should  be  at  large,  because  of  the 
direct  injury  that  he  does  and  because  of  the  corrupting  influ- 
ence he  exerts  ;  and,  in  the  second  place,  he  is  more  amena- 
ble to  correct  treatment,  and  more  easily  curable  than  any 
other  class  of  public  wards." a 

If  criminality  is  a  defect  of  character,  or  a  disease 
to  be  remedied  or  cured,  common-sense  rejects  the 
fixing  of  a  positive  time  in  which  the  cure  shall  be 
effected  for  every  individual  who  commits  a  cer- 
tain crime  alike,  whatever  may  be  his  actual  condi- 
tion or  variation  from  the  normal,  as  absurd.  Such 
sentences  are  as  irrational  as  the  employment  of  a 
doctor  for  a  serious  ailment  on  a  time  contract ;  as 

1  Dr.  Eugene  Smith,  American  Social  Science  Association,  Reformation 
or  Retribution,  p.  3. 


The  Science  of  Penology 


impossible  as  the  "  due  and  forfeit  "  pound  of  flesh 
in  Antonio's  bond  to  Shylock. 

"  The  method  of  apportioning  penalties  according  to  the  de- 
gree of  guilt  implied  by  defined  offenses  is  as  completely  dis- 
credited, and  is  as  incapable  of  a  part  in  any  reasonable 
system  of  social  organization  as  the  practice  of  astrology,  or 
the  police  against  witchcraft.  It  holds  its  place  merely  by  the 
tenacity  of  custom  and  the  inertia  of  opinion  controlled  by 
tradition."  ' 

Experience  with  the  Bertillon  system  of  identi- 
fication gives  absolute  proof  that  it  is  impossible  to 
find  even  two  criminals  alike  in  the  whole  world. 
There  are  as  wide  variations  in  criminal  character 
as  in  measurements.  Each  convict  requires  indi- 
vidual personal  treatment  adapted  to  his  particular 
condition  just  as  imperatively  as  every  patient  in  a 
hospital  requires  special  prescriptions.  There  were 
966  convicts  serving  sentences  for  burglary  in  the 
State  prisons  of  New  York  in  1898,  each  crime 
doubtless  different  from  the  others,  and  every  bur- 
glar certainly  so,  but  the  extreme  limits  of  the 
criminal  code  of  New  York  only  allow  a  variation 
from  one  year  to  a  life  sentence  for  the  crime  of 
burglary.  For  these  966  burglaries  there  could 
only  be  a  fixed  variation  of  a  few  years  in  the  legal 
punishment  of  imprisonment  inflicted.  For  the 
most  heinous  burglary  the  judge  might  imprison  a 
man  for  the  rest  of  his  life,  a  term  which  might  vary 
widely  on  account  of  the  age  of  the  convict,  and 

1  The  Reformatory  System  in  the  United  States,  igoo,  Charlton  T. 
Lewis,  p.  60. 


The  Indeterminate  Sentence          143 


might  extend  far  beyond  the  time  which  would 
under  any  circumstances  of  disease  be  required 
for  reformation  and  cure  if  the  convict  were 
curable ;  while  the  minimum  of  one  year  would 
scarcely  be  sufficient  for  the  reformation  of  the 
least  depraved. 

Our  science,  then,  demands  the  indeterminate 
sentence  as  an  essential  element  both  of  the  re- 
formation of  the  criminal  and  the  protection  of 
society.  Almost  every  penologist  of  distinction 
abroad  and  at  home  has  urged  its  adoption  in 
every  possible  manner  for  years,  but  it  has  never 
been  enacted  in  any  of  the  United  States  in  its 
entirety,  although  several  States  have  passed  per- 
missive laws,  but  even  then  with  a  maximum  limit 
to  imprisonment.  Indefinite  imprisonment  exists 
in  several  foreign  countries,  based  upon  cumula- 
tive sentences  for  incorrigibility,  as  in  England, 
India,  Japan,  and  France  ;  but  there  has  been  no 
absolute  indeterminate  sentence,  such  as  the  science 
of  penology,  logic,  reason,  and  human  progress 
unequivocally  demand,  adopted  in  the  criminal 
code  of  any  foreign  or  domestic  state.  The  ob- 
stacles which  have  hitherto  prevailed  against  its 
adoption  are  great  and  difficult  to  overcome. 
Public  opinion  must  be  not  only  educated  up  to 
the  plane  of  the  scientists,  but  also  change  the 
convictions  of  all  its  past  history  in  replacing  the 
principle  of  retributive  punishment  by  that  of 
punitive  reformation  in  its  criminal  jurisprudence. 
To  accomplish  such  an  education  and  change  of 


144  The  Science  of  Penology 


conviction  is  a  labor  of  great  magnitude,  hardly  pos- 
sible in  a  few  years.  It  would  seem  now  that  this 
obstacle  is  rapidly  disappearing.  The  public  opin- 
ion, which  legislates  and  rules  ultimately,  and  in- 
telligent sentiment  everywhere,  are  informed  on 
this  subject,  and  interested  in  both  its  philanthropic 
and  its  economic  phases,  more  than  ever  before. 
It  is  one  of  the  sociological  subjects  which  the 
advance  of  civilization  and  the  increasing  density 
of  population  are  pressing  continually  into  urgent 
prominence. 

When  public  opinion  arrives  at  the  point  of 
action  on  this  subject,  two  great  physical  obstacles 
will  have  to  be  removed.  First :  The  whole  exist- 
ing code  of  criminal  law,  and  much  of  the  practice 
of  courts,  the  growth  of  all  the  ages,  will  have  to 
be  repealed  and  cast  aside  as  useless,  and  the  new 
but  much  simpler  code  substituted  in  its  place.  It 
requires  men  of  courage,  self-reliance,  and  de- 
termination to  undertake  and  carry  forward  to  a 
successful  issue  such  a  legal  revolution  as  this. 
There  are  few  pecuniary  rewards,  and  only  an 
indefinite  amount  of  honor  attending  success,  to 
invite  to  the  undertaking  as  compensation  for  its 
labors.  But  this  field  offers  an  opportunity  for 
philanthropic  achievement,  service  to  humanity, 
and  fame,  even,  which  will  not  be  neglected  when 
the  time  comes. 

Secondly :  The  large  and  expensive  plant  of 
prisons  which  mankind  has  erected  for  the  confine- 
ment of  criminals,  calculated  and  designed  simply 


The  Indeterminate  Sentence          145 


as  places  for  secure  punishment,  require  very  con- 
siderable expenditures  to  adapt  them  to  a  reform- 
atory system.  Legislators  prefer  appropriations 
which  promise  a  more  immediate  return.  But  the 
reformatory  prison  is  a  necessary  antecedent  of 
the  indeterminate  sentence.  There  must  be  a 
place  provided  where  the  criminally  diseased  can 
be  skilfully  and  scientifically  treated  for  cure, 
before  he  can  be  justly  committed  indefinitely  into 
the  doctor's  charge.  The  limited  and  tentative 
enactments  which  have  already  been  made  afford 
opportunity  to  provide  the  necessary  reformatories, 
and  are,  therefore,  steps  of  progress  toward  the 
desired  end.  So  complete  a  revolution  cannot  be 
effected  suddenly  without  inordinate  violence  and 
expense.  The  gradual  transformation  of  some  of 
the  State  prisons  into  reformatories,  and  the  adap- 
tation of  others  to  the  permanent  seclusion  of  the 
incorrigible ;  the  education  and  training  of  reform- 
ers and  their  staffs  of  assistants  ;  the  development 
of  the  institutions  and  of  the  skilled  professional 
class  needed  to  manage  them,  are  the  work  of 
considerable  time.  Economical  reformation  is 
impracticable  without  both  the  men  and  the 
means  which  experience  teaches  are  indispensable 
to  success. 

Besides  these  two  physical  obstacles  there  are 
three  or  four  metaphysical  objections  to  the  inde- 
terminate sentence  to  be  overcome.  The  conserv- 
atives who  oppose  all  change  and  progress  have 
urged  their  usual  final  objection  of  unconstitution- 


The  Science  of  Penology 


ality  against  it.  This  claim  was  once  sustained  by 
the  Supreme  Court  of  Michigan,  but  the  courts  of 
seven  other  States  have  since  rejected  it,  and  the 
legal  profession  have  come 

"  to  a  substantially  unanimous  conviction  that  there  is  no  valid- 
ity in  the  objection.  The  overwhelming  weight  of  judicial 
opinion  holds  that  the  legislature  may  assign  to  offenses  precise 
and  unvarying  penalties,  or  may  leave  to  the  courts  full  dis- 
cretion to  fix  them,  with  or  without  specified  limits,  and  with 
or  without  conditions  ;  that  the  pardoning  power,  even  if  con- 
stitutionally vested  in  the  chief  executive  alone,  is  in  no  re- 
spect qualified  or  impaired  by  authorizing  other  officers  to 
ascertain  when  any  conditions  thus  imposed  are  fulfilled  ;  that 
in  short  such  determinations  and  the  consequent  release  of  the 
convict,  are  the  execution  of  such  a  sentence  and  not  an  in- 
fringement of  it.  These  principles  are  now  so  fully  established 
that  the  rather  technical  quibbling  which  has  occasionally 
been  heard  against  them  would  require  no  mention  but  for  the 
momentous  fact,  which  must  not  be  concealed  or  evaded,  that 
the  savage  theory  of  retribution  has  for  generations  controlled 
and  shaped,  not  only  the  thoughts  of  men  in  relation  to  crime, 
but  our  systems  of  penal  law  and  in  some  degree  our  written 
constitutions  themselves,  and  long  before  the  reconstruction  of 
criminal  jurisprudence  on  true  principles  can  be  completed, 
the  reform  will  come  into  severe  conflict  with  the  forces  of  time- 
honored  prejudice  and  narrow  conservatism  entrenched  in 
these  strongholds.  Let  me  frankly  say,  then,  that  while  the 
timid  beginnings  of  legislation  in  the  direction  of  science  and 
humanity  which  have  been  obtained  in  eight  or  ten  States  of 
the  Union,  providing  for  partial  and  imperfect  experiments  in 
reformatory  imprisonment,  have  in  no  case  gone  further  than 
our  constitutions  permit,  or  than  the  body  of  intelligent  public 
opinion  will  sanction,  yet  these  are  the  beginnings  of  a  revo- 
lution which  is  destined  radically  to  change  men's  habits  of 
thought  concerning  crime,  and  the  attitude  of  society  towards 
criminals,  to  rewrite  from  end  to  end  every  penal  code  in 


The  Indeterminate  Sentence          147 


Christendom,  and  to  modify  and  ennoble  the  fundamental  law 
of  every  State."  ' 

The  "  indeterminate  sentence "  is  a  sentence 
which  commits  a  convict  to  confinement  in  a 
scientific  reformatory  until  he  is  pronounced  fit  to 
be  restored  to  social  freedom  by  a  competent  tri- 
bunal ;  with  the  condition  that  when  this  tribunal 
pronounces  the  convict  incurable  or  incorrigible  he 
shall  be  transferred  to  a  prison,  where  secure  seclu- 
sion and  the  cheapest  maintenance  are  the  chief  ob- 
jects, for  continuous  imprisonment.  In  this  prison 
or  penitentiary  the  more  expensive  efforts  and 
agencies  of  reformation  and  cure  yield  precedence 
to  economy  of  administration  ;  but  the  convict  may 
still  achieve  his  liberation  by  satisfying  the  tribunal 
of  his  cure.  The  convict  holds  the  key  of  the  door 
of  the  reformatory  in  his  own  control  so  long  as  he 
is  in  it,  and  if  he  goes  to  the  penitentiary  he  is 
again  given  the  key  of  that  door  also.  The  hope 
and  possibility  of  liberty  are  never  entirely  cut  off. 
Despair  and  imprisonment  for  life  are  the  conse- 
quence solely  of  his  own  contumacy  and  incorrigi- 
bility.  The  responsibility  for  the  severity  of  his 
punishment  is  thus  always  left  resting  upon  himself. 
No  definite  end  or  limit  for  the  imprisonment  is  or 
can  be  rationally  connected  with  the  sentence. 
The  commitment  is  like  that  of  an  insane  person  to 
an  asylum,  or  a  sick  one  to  a  hospital, — until  cured. 
The  disease  is  dangerous  to  the  public,  therefore 

1  The  Reformatory  System  in  the  United  States,  igoo,  CharltonT.  Lewis, 
p.  67. 


The  Science  of  Penology 


the  State  must  keep  the  criminal  shut  up  for  the 
protection  of  the  public,  until  it  is  assured  by  com- 
petent authority  that  it  will  be  safe  to  discharge 
him  ;  but  the  hope  of  release  lasts  till  death. 

Who  shall  be  commissioned  to  give  this  assur- 
ance, upon  which  the  safety  of  society  and  the  fate 
of  the  criminal  depends  ?  If  it  is  found  necessary 
to  withdraw  the  power  which  is  now  entrusted 
under  the  limitations  of  the  law  to  the  learned  and 
honorable  judges  who  preside  at  the  trials,  upon 
whom  shall  it  be  conferred  ?  Who  will  exercise  it 
more  wisely,  honestly,  equitably,  and  satisfactorily  ? 
Is  every  one  to  be  exposed  to  arrest  and  imprison- 
ment for  life  for  some  youthful  indiscretion,  or 
error  of  judgment,  or  minor  crime,  or  malicious 
accusation  supported  by  false  witnesses  ?  These 
are  the  crucial  questions  which  must  be  answered 
before  the  indeterminate  sentence  can  be  prac- 
tically possible.  It  is  because  no  popularly  satis- 
factory reply  has  yet  been  made  to  them  that  this 
great  reform  has  halted  so  long  upon  the  threshold 
of  acceptance,  "  and  makes  us  rather  bear  those 
ills  we  have,  than  fly  to  others  that  we  know  not 
of." 

Where  the  indefinite  sentence  with  a  maximum 
limit  of  imprisonment  has  been  legalized  in  this 
country,  the  power  of  conditional  liberation  on 
parole  and  final  discharge  has  been  conferred  upon 
the  board  of  managers  of  the  institution.  The 
board  of  managers  is  appointed  by  the  Governor 
of  the  State,  sometimes  subject  to  confirmation  by 


The  Indeterminate  Sentence          149 


the  Senate.  The  board  selects  the  superintend- 
ent, and  makes  the  rules  and  regulations  gov- 
erning the  administration  of  the  institution,  the 
reformative  treatment,  and  release  of  prisoners  in 
accordance  with  the  law.  The  members  of  the 
board  are  usually  men  of  character  and  influence, 
actively  occupied  with  their  private  affairs,  who 
meet  at  stated  periods  for  the  transaction  of  the 
business  of  the  board  from  a  desire  to  render  some 
personal  service  to  the  public.  They  serve  without 
pay,  at  more  or  less  sacrifice  of  time  and  conven- 
ience, and  are  naturally  disposed  to  make  these 
sacrifices  as  small  as  possible  consistently  with  a 
faithful  discharge  of  duty.  The  superintendent  or 
warden  is  their  executive  and  agent,  in  whom  they 
have  confidence  ;  for  unless  they  have  confidence 
in  him  they  greatly  err  in  retaining  him,  and  in 
becoming  responsible  for  his  faults.  The  recom- 
mendations of  the  superintendent  concerning  the 
treatment  and  discharge  of  prisoners,  therefore, 
have  very  great  weight,  and  are  almost  always 
adopted,  unless  valid  objections  are  made  to  them. 
The  result  is  that  the  power  of  release  devolves, 
in  fact,  upon  the  recommendations  of  the  warden. 
The  public  know  that  many  wardens  are  appointed 
as  a  reward  for  political  service  rather  than  on 
account  of  any  particular  fitness  for  so  important 
a  position  as  that  would  be  under  the  indetermi- 
nate sentence.  Hence  it  wisely  concludes  that  the 
decision  concerning  the  length  of  a  criminal's  im- 
prisonment will  be  safer  in  the  control  of  the 


15°  The  Science  of  Penology 


learned  court  under  the  law,  than  in  the  hands  of 
political  wardens  of  the  present  style. 

Conscientious  wardens,  on  the  other  hand,  shrink 
from  the  assumption  of  so  grave  a  responsibility  as 
is  involved  in  the  imprisonment  of  criminals  for 
life.  They  appreciate  the  harassing  disturbance 
of  unceasing  appeals  by  relatives  and  friends  for 
change  of  decision,  the  power  of  political  "pull" 
and  dictation,  the  danger  of  bribery  and  corrupting 
influences  upon  members  of  the  board  of  managers, 
their  subordinates,  and  themselves ;  and  especially 
the  weakening  of  authority  and  the  diminution  by 
accusation  or  suspicion  of  yielding  to  such  influ- 
ences, of  the  convicts'  respect  and  confidence  in 
their  unswerving  justice  and  firmness,  upon  which 
the  success  of  their  reformative  measures  depends. 
Such  wardens  are  the  great  leaders  in  penological 
reform,  who  have  brought  the  science  to  its  pres- 
ent plane.  The  public  courage  falters  and  halts 
when  the  voices  of  the  captains  are  silent. 

Experience  with  the  indefinite  sentence  under 
which  criminals  are  permitted  to  obtain  a  re- 
duction of  time  by  good  behavior  has  shown, 
moreover,  that  the  most  incorrigible,  vicious,  and 
dangerous  criminals  are  likely  to  be  the  best  prison- 
ers. The  "  smart "  convict  bends  all  his  efforts  to 
shorten  his  term  in  prison  in  order  to  hasten  his 
resumption  of  crime.  Good  conduct,  which  se- 
cures an  amelioration  of  the  rigors  of  punishment, 
is  not  a  reliable  indication  of  a  reformed  character. 
The  evidence  which  has  been  depended  upon  to 


The  Indeterminate  Sentence          151 


prove  the  progress  and  completion  of  cure  under 
the  indefinite  sentence,  and  which  is  popularly  sup- 
posed to  be  the  chief  guide  for  the  decision  of  the 
warden  concerning  the  disposition  of  the  prisoner 
under  the  indeterminate  sentence,  has  often  turned 
out  to  be  utterly  fallacious  and  unreliable.  There 
is  apprehension  on  this  account  that  wardens  will 
be  led  into  serious  errors  of  judgment,  and  be 
deceived  into  the  premature  discharge  of  dan- 
gerous criminals  by  their  cunning  simulation  of 
goodness.  This  might  possibly  occur  with  a  new, 
inexperienced,  politically  appointed  warden,  but  is 
very  improbable  with  a  scientific  expert,  such  as 
should  be  in  charge  of  a  reformatory. 

A  warden  has  ample  time  for  observing  and 
studying  every  prisoner  in  his  charge  ;  he  investi- 
gates his  previous  record,  family,  and  life,  and 
examines  into  the  circumstances  of  the  crime  com- 
mitted and  the  character  of  the  convict  when  re- 
ceived. As  the  three  elements  of  the  character 
respond  to  or  lie  dormant  under  treatment,  he 
must  watch  and  adapt  his  treatment  to  the  ever- 
varying  phases  of  recovery.  He  can  apply  re- 
peated tests  of  all  kinds  to  verify  his  judgment, 
and  is  under  no  necessity  of  reaching  an  imme- 
diate or  hasty  conclusion.  His  advantages  and 
opportunities  for  information,  study,  and  consid- 
eration, as  well  as  his  diversity  of  experience, 
are  immeasurably  superior  to  those  of  a  judge 
who  can  devote  only  the  brief  time  of  trial  to  each 
convict,  and  must  trust  more  to  intuition  than 


i52  The  Science  of  Penology 


information  or  reason  in  formulating  his  sentence. 
It  is  rather  an  argument  in  favor  of  the  indetermi- 
nate sentence  that  all  the  time  and  means  necessary 
may  be  occupied  in  arriving  at  an  accurate  and 
sound  decision  concerning  the  release  or  incorrigi- 
bility  of  all  convicts. 

Some  object  also  to  the  reformatory  system  of 
which  the  indeterminate  sentence  is  an  element, 
because  the  course  of  education  and  training  pro- 
vided by  it  for  criminals  at  the  public  expense  is  so 
superior  to  that  which  is  available  to  the  honest 
majority  of  citizens  as  to  make  it  a  premium  and 
reward  for  criminality.  They  claim  that  it  is  un- 
fair and  unjust  to  give  privileges  to  the  enemies  of 
society  which  cannot  be  granted  to  those  who  re- 
main at  peace  and  in  harmony  with  it.  To  this  it 
may  be  replied  that  the  doctor  is  called  to  the  sick, 
and  not  to  the  well.  Nurses  and  medicines  are 
provided,  and  whatever  expense  can  be  possibly 
defrayed  is  unhesitatingly  incurred,  in  the  hope  of 
restoration  to  health.  The  Saviour  left  heaven  and 
came  to  the  earth  to  call  sinners  and  not  the 
righteous  to  repentance.  Society  is  compelled  to 
protect  itself  at  any  cost,  and  protection  is  eco- 
nomical even  at  the  highest  cost. 

O 

Others,  on  the  contrary,  profess  repugnance  to 
this  sentence  on  account  of  the  alleged  cruelty  of 
unlimited  imprisonment.  They  object  that  such  a 
sentence  causes  more  suffering  to  the  convict  than 
the  tortures  of  ancient  times,  and  that  it  is  a  rever- 
sion to  barbarous  penalties.  They  argue  that 


The  Indeterminate  Sentence          153 


possibly  some  one  might  be  committed  for  a  minor 
offense  which  had  always  by  the  common  consent 
of  mankind  been  expiated  by  a  light  penalty  or 
brief  imprisonment,  and  nevertheless  might  fail  to 
earn  his  release  and  remain  a  prisoner  for  life  ;  that 
it  is  a  monstrous  tyranny  to  condemn  one  to  life 
imprisonment  for  a  petty  larceny  or  similar  viola- 
tion of  law,  even  though  a  way  is  open  by  which 
he  may  earn  freedom. 

"  This  apprehension  has  led,  in  almost  every  statute  author- 
izing a  reformatory  sentence,  to  a  provision  for  the  maximum 
term,  fixed  by  the  old  retributory  code  ;  at  the  end  of  which 
the  prisoner  must  be  freed,  however  certain  it  be  that  he  will 
plunge  at  once  into  crime.  The  charge  of  cruelty  justly  lies, 
not  against  the  sentence  which  would  restrain  him,  but  against 
that  which  would  dismiss  him  to  his  ruin  and  to  the  damage 
of  mankind.  The  criticism  is  founded  on  the  false  notion 
that  his  confinement  is  a  punishment  for  his  offense.  Unless 
the  conception  of  penalty  and  the  thought  of  any  relation  or 
proportion  between  it  and  the  crime  is  utterly  abandoned,  no 
right  thinking  on  the  subject  is  possible.  As  long  as  a  man 
cannot  be  at  large  with  safety  to  himself  and  others,  he  must 
be  restrained.  This  is  the  dictate  of  mercy  itself,  and  the 
particular  act  which  has  first  disclosed  to  the  community  his 
character  and  its  danger,  has  no  bearing  whatever  upon  the 
question.  Tt  is  the  interests  of  society  and  of  the  convict  for 
the  future,  and  not  their  memories  of  the  past,  which  are  to 
be  conserved." * 

This  objection  is  counterbalanced  by  the  restraint 
which  such  possibilities  would  exercise  upon  magis- 
trates when  imposing  sentence,  and  by  the  force 

1  The  Reformatory  System  in  the  United  States,  p.  65,  Dr.  Charlton  T. 
Lewis. 


154  The  Science  of  Penology 


which  the  necessity  of  incurring  these  great  risks 
with  the  indeterminate  sentence  would  add  to  the 
impress  of  its  basic  principle,  that  no  one  should 
ever  be  cast  into  prison  so  long  as  it  is  safe  for 
himself  and  for  society  that  he  be  free.  If  only 
those  are  imprisoned  who  are  dangerous  at  liberty, 
it  follows,  of  course,  that  they  should  never  be  lib- 
erated until  they  have  become  harmless.  There  is 
no  rational  excuse  for  the  discharge  of  a  criminal 
whom  the  State  has  at  great  expense  once  de- 
tected, arrested,  tried,  and  convicted,  so  long  as  he 
continues  a  criminal  in  disposition  and  character, 
and  may  be  expected  to  compel  the  State  to  incur 
the  same  expense  again. 

Scientific  Penology,  then,  requires  the  institution 
of  a  court  of  last  resort  for  the  convict  who  might 
be  unjustly  continued  in  confinement ;  to  which  he 
should  have  the  right  and  opportunity  of  appeal. 
Such  a  tribunal  would  satisfy  all  the  rational  objec- 
tions which  prevent  the  general  adoption  of  this 
grand  reformation  of  the  relations  between  the 
State  and  criminals.  The  word  "  tribunal "  sug- 
gests a  proper  and  competent  constitution  of  it. 
A  bench  of  three  judges,  wisely  selected,  would 
have  sufficient  dignity,  impartiality,  justice,  mercy, 
and  wisdom  to  inspire  confidence  in  the  minds  of 
the  people  and  of  the  criminals  that  the  rights  and 
interests  of  both  would  be  carefully  and  judiciously 
guarded.  The  superintendent  of  the  institution 
where  the  criminal  is  confined  of  necessity  should 
be  one  of  the  three,  because  he  would  be  best 


The  Indeterminate  Sentence          155 


informed  about  the  condition  and  character  of  the 
appellant,  and  best  qualified  to  judge  of  his  incor- 
rigibility  as  the  expert  physician  in  charge  of  the 
case.  There  would  be  no  appeal  except  from  his 
decision  to  transfer  to  the  penitentiary  for  life. 
The  natural  disposition  of  the  physician,  and  es- 
pecially of  the  moral  physician,  is  against  the  aban- 
donment of  any  case  as  hopeless  while  life  lasts. 
If  the  appeal  alleges  prejudice,  animosity,  or  any 
improper  motive  for  the  decision,  the  majority  of 
the  court  could  still  be  relied  upon  for  justice. 
The  judge  who  sentenced  the  convict  ought  nat- 
urally also  to  be  a  member,  representing  the  court 
of  original  jurisdiction.  Having  knowledge  of  the 
previous  life  of  the  appellant,  and  the  crime  for 
which  he  was  convicted,  he  would  be  held  respons- 
ible to  a  certain  extent  for  his  fate  by  the  com- 
munity most  directly  interested  in  his  detention  or 
liberation,  and  would  regard  the  interests  and 
wishes  of  his  relatives.  The  third  member  should 
be  an  impartial  officer  representing  the  State, 
elected  to  serve  for  a  long  term  of  years,  with  a 
salary  sufficient  to  command  high  capacity  and 
character.  The  State  commissioner  of  prisons,  hav- 
ing the  supervision  and  control  of  all  reformatory 
and  penal  institutions,  the  discipline  and  govern- 
ment of  all  the  criminal  class,  largely  independ- 
ent of  political  and  selfish  motives,  beyond  the 
reach  of  improper  influences  and  local  sentiment, 
would  seem  to  be  the  best  adapted  to  complete 
this  tribunal.  The  law  should  specify  that  an 


156  The  Science  of  Penology 

agreement  of  two  should  be  a  final  conclusion  of 
any  matter  submitted  to  this  court,  and  that  there 
should  be  no  further  appeal  to  any  other. 

The  institution  of  such  an  appellate  court  re- 
moves the  main  obstacle  to  the  repeal  of  the  multi- 
tude of  specified  penalties  in  our  criminal  codes, 
and  the  substitution  of  the  single  indeterminate 
sentence  for  all  crimes  punishable  by  imprison- 
ment. Its  sessions  would  not  be  frequent  or  bur- 
densome to  its  members,  even  to  the  State  official, 
who  alone  would  be  compelled  to  sit  in  every  case 
tried.  If  so  many  as  the  twenty  per  cent,  who 
fail  of  cure  at  Elmira  should  be  identified  as  incor- 
rigible, it  is  unlikely  that  more  than  a  small  num- 
ber of  these  would  appeal  from  the  first  decision 
of  their  case  to  such  a  court. 

There  has  been  much  discussion  as  to  when  the 
indeterminate  sentence  should  be  applied  to  con- 
victs, whether  upon  first,  second,  or  third  convic- 
tion, and  also  as  to  the  crimes  for  which  it  should 
be  imposed.  The  consensus  of  opinion,  which 
science  must  accept  as  conclusive  in  the  absence  of 
positive  demonstration,  has  enunciated  this  rule  in 
settlement  of  these  questions :  All  sentences  of 
imprisonment  should  be  undetermined  in  duration, 
and  continuous  until  the  convict  is  cured.  No  one 
should  be  imprisoned  whom  it  is  safe  to  leave  at 
large.  Every  one  imprisoned  should  have  a  mini- 
mum limit  of  sentence,  proportioned  under  the  dis- 
cretion of  the  judge  as  a  punishment  of  his  crime, 
which  must  be  served  without  reduction,  before 


The  Indeterminate  Sentence          157 


release  can  be  obtained,  under  the  operation  of  the 
regulations  of  the  reformatory. 

The  indeterminate  sentence  is  inapplicable  to 
criminals  guilty  of  capital  crimes,  or  those  which 
have  been  adjudged  so  atrocious  or  harmful  as  to 
require  imprisonment  for  life  ;  nor  is  it  alone  suffi- 
cient for  crimes  of  lust. 

The  adoption  of  the  reformatory  system  and  the 
substitution  of  the  single  indeterminate  sentence 
for  specific  sentences  necessarily  involves  the  re- 
striction of  the  pardoning  power  to  criminals  serv- 
ing under  definite  sentences. 

This  also  necessitates  the  separation  of  the 
penalties  of  fines  from  connection  with  imprison- 
ment. If  a  retributive  fine  can  be  collected  from 
the  resources  of  the  convict,  it  can  still  be  im- 
posed ;  but  time  in  a  reformatory  must  be  devoted 
entirely  to  reformation  of  character,  and  can  have 
no  relation  to  the  payment  or  working  out  of  a  fine. 


CHAPTER   IX 

THE    REFORMATION    OF    CRIMINALS 

Reformation  Versus  Punishment  —  Reformation  Constitutes  the  Science  of 
Penology  —  Its  Scientific  Basis  —  Its  Philanthropic  and  Economic 
Objects — The  Five  Vital  Elements — General  Characterization  of  Crimi- 
nals by  Brockway — Necessity  of  Classification  —  Principle  of  Classifi- 
cation Adopted  by  Brockway  —  The  Law  of  Habit  —  Correction  of 
Evil  Habits  —  Physical  Line  of  Direction  —  Mental  —  Moral  —  The 
Physical  Means  Used  —  By  the  Physician  —  By  the  Superintendent  — 
Routine  at  Elmira — Cure  of  the  Minor  Defects  of  the  Seriously  De- 
fective— General  Defectives — The  Dietary — Technical  Training — The 
Military  Organization — Discipline — Physical  Punishments  —  Commis- 
sary, and  Bertillon  Records — The  Mental  Means,  and  School  of  Let- 
ters— Reading — The  Moral  Means — Influence  of  Example — Of  the 
Warden  —  Moral  Training  Incessant  —  The  Proper  Subjects  for  Re- 
formatory Treatment — Labor  in  Reformatories — Conditions  of  Release 
— Parole — Experience  at  Elmira — Necessary  Time  of  Treatment — 
Reformatories  to  Separate  the  Incurable — Incurables  to  be  Con- 
signed to  Penitentiaries — Size  of  Reformatories — Costs — Female 
Reformatories. 

THE  substitution  of  the  reformative  treatment 
of  criminality  in  the  place  of  the  pre-Chris- 
tian codes  of  the  lex  talionis  is  a  logical  develop- 
ment of  the  law  of  redemption  by  conversion  to 
righteousness,  taught  by  the  precepts  and  illus- 
trated in  the  life  of  Christ.  It  relegates  the  pun- 
ishment of  sin,  wickedness,  vice,  and  immorality 
to  God,  to  whom  it  belongs,  who  always  and 
everywhere  proclaims,  by  word  and  acts  which 
cannot  be  misunderstood,  "  Vengeance  is  mine.  I 

158 


The  Reformation  of  Criminals         159 


will  repay " ;  and  restricts  the  functions  of  hu- 
man laws  to  the  protection  of  humanity  from 
wrong  and  harm  by  the  confinement  of  evil-doers 
until  their  disposition  to  crime  is  removed.  It 
replaces  vindictive  cruelty  toward  criminals  with 
humane  efforts  to  cure  the  disease  which  causes 
criminality,  just  as  medical  science  has,  within  the 
last  half-century,  relieved  the  insane  from  the 
cruelties  with  which  for  so  many  centuries  igno- 
rance strove  by  bodily  punishment  to  correct  men- 
tal derangement.  It  recognizes  the  punishment 
of  the  body  for  the  sins  of  the  soul  as  an  absurd 
and  arrogant  assumption  by  bigotry  and  ignorance 
of  the  prerogatives  of  God,  an  impertinent  at- 
tempt by  mortal  men  to  interfere  in  the  relations 
of  the  immortal  soul  to  the  omniscient  Creator. 

The  reformation  of  criminals  is  not  alone  a 
Christian  theory  which  cannot  be  fully  verified  in 
human  life,  but  is  now  a  positive  and  actual  science, 
based  upon  facts  and  principles  as  well  established 
as  any  in  human  therapeutics.  Indeed,  the  scien- 
tific observations  of  criminologists,  and  the  recorded 
results  of  the  experiments  of  the  last  twenty-five 
years,  particularly  those  of  Mr.  Brockwayat  Elmira, 
have  not  only  demonstrated  the  reliability  of  these 
fundamental  facts  and  principles,  but  they  have 
actually  constituted  the  science  of  Penology.  The 
scientific  basis  of  the  reformative  system  of  deal- 
ing with  criminality  is  : 

First  :  The  establishment  of  the  fact  that  there 
exists  a  criminal  class,  which  is  not  controlled 


160  The  Science  of  Penology 


by  the  laws  which  are  adequate  for  the  govern- 
ment of  the  mass  of  society, — either  the  human 
laws,  or  the  divinely  ordained  laws  of  conscience. 
This  class  is  the  source  of  all  the  criminal  dis- 
turbance of  society. 

Second  :  That  the  uncontrollability  of  the  crim- 
inal class  is  due  to  an  unnatural  or  abnormal 
condition  of  the  personal  character  of  its  members, 
which  is  properly  designated  a  disease  ;  just  as  in- 
sanity, inebriety,  prostitution,  idiocy,  and  epilepsy 
are  diseased  conditions  of  the  human  system. 

And  third  :  That  the  prognosis  of  the  disease 
of  criminality  is  quite  as  hopeful  as  that  of  any 
of  the  serious  diseases  which  afflict  humanity. 

Information  secured  in  1899  concerning  274,763 
reported  cases  of  smallpox,  typhoid,  diphtheria, 
and  croup,  showed  a  fatality,  in  smallpox  of  25.8 
per  cent.,  in  typhoid  fever  of  19  per  cent,  and  in 
diphtheria  and  croup  of  22.7  per  cent.,  during  the 
years  1894  to  1898  inclusive,1  as  compared  with 
the  1 6.6  per  cent,  of  failures  in  the  reformation  of 
criminals  recorded  as  the  actual  results  of  the 
twenty-five  years'  practice  of  Mr.  Brock  way  at 
Elmira.  This  percentage  of  failures,  moreover, 
was  the  result  of  a  system  of  Penology  which 
limited  the  time  of  treatment  to  a  specific  maxi- 
mum of  duration  previously  fixed  bylaw  as  adapted 
to  a  single  symptom,  the  crime,  instead  of  more 
rationally  committing  its  determination  to  the 

1  Public  Hygiene  and  the  State  of  Medicine  in  the  United  States.     Com- 
mission to  Paris  Exposition,  1900,  p.  21. 


The  Reformation  of  Criminals         161 


physician  in  charge.  Such  a  system  necessarily 
caused  the  discharge  of  many  of  the  most  difficult 
and  obdurate  cases  uncured,  thus  reducing  the 
possible  average  of  recoveries.  //  may,  then,  be 
regarded  as  scientifically  proved  that  the  disease  of 
criminality  can  be  cured. 

The  philanthropic  object  of  reformative  treat- 
ment is  the  restoration  to  the  criminal  of  the 
powers  of  self-control  by  a  cure  of  his  disease, 
whatever  its  nature,  .in  order  that  he  may  be 
relieved  from  social  restraint,  and  receive  the 
freedom  of  self-government  in  place  of  the  com- 
pulsion of  external  authority.  It  aims  to  make  a 
safe  citizen  out  of  a  dangerous  one.  The  eco- 
nomical object  is  the  protection  of  society  from 
criminal  danger  and  ravage,  the  inordinate  cost 
of  repeated  arrests,  and  the  cumulative  mainten- 
ance of  criminals.  The  saving  from  doing  away 
with  the  existing  methods  of  propagating  and 
fostering  criminality  would  result  in  an  annual 
reduction  of  at  least  eighty  per  cent,  of  the  burden 
of  society  ;  or  of  over  $6.32  per  capita  of  popula- 
tion. The  general  adoption  of  the  reformative 
system  in  the  United  States  would  therefore  save 
its  76,000,000  of  people  at  least  $480,000,000  a 
year,  which  is  now  wasted.1 

The  magnitude  of  these  objects,  and  the  demon- 
strated possibility  of  their  attainment,  therefore, 
make  this  one  of  the  most  important  reforms  in 
the  wide  range  of  our  political  economy. 

'See  Chapter  I.,  p.  n. 


1 62  The  Science  of  Penology 


There  are  five  essential  elements  in  the  reforma- 
tive system  of  dealing  with  criminality.  First : 
The  indeterminate  sentence,  securing  continual 
treatment  so  long  as  there  is  a  prospect  of  cure, 
and  offering  a  constant  alternative  stimulus  of 
hope  and  fear  to  the  convict — hope  of  freedom  to 
be  earned,  fear  of  life  imprisonment  to  be  suffered. 
Second  :  A  suitable  prison  or  plant  supplied  with 
adequate  facilities  and  apparatus.  Third :  A 
skilled,  scientific,  philanthropic  governor  of  the 
prison,  with  a  competent  staff.  Fourth  :  Intelli- 
gent reformatory  discipline  and  treatment.  Fifth  : 
Conditional  liberation  on  parole  and  probation. 
If  either  of  these  elements  is  absent  the  system  is 
destroyed,  and  satisfactory  results  are  impossible. 
We  will  confine  our  attention  here  to  the  fourth  or 
strictly  therapeutic  element,  as  the  others  are  fully 
treated  elsewhere  in  this  book. 

Mr.  Z.  R.  Brockway,  after  an  intelligent  ob- 
servation of  over  fifty  thousand  criminals,  has 
made  the  following  very  comprehensive  and  ac- 
curate characterization  of  the  prisoners  in  reforma- 
tories : 

"  They  belong  to  the  grade  of  humanity  which  is  inferior. 
The  whole  inmate  population  may  be  divided  into  two  grades 
of  inferiority — those  whose  defectiveness  is  very  apparent, 
and  others  whose  mental  and  moral  defects  are  concealed  un- 
der good  (and  sometimes  quite  brilliant)  capabilities  in  given 
directions.  About  one  half  of  them  have  been  not  unfamiliar 
with  life  in  institutions  of  one  kind  or  another,  with  arrests 
and  imprisonments,  temporary  or  prolonged,  in  station  house, 
jail,  or  prisons  for  juvenile  offenders  or  misdemeanants  ; 


The  Reformation  of  Criminals         163 


while  some  of  them  have  been  imprisoned  for  serious  crimes. 
More  than  sixty  per  cent,  of  them  are  practically  illiterate  on 
admission  to  the  reformatories,  and  at  least  one  third  of  the 
whole  are  from  a  class  of  dull  scholars  in  the  public  primary 
schools,  or  truants  who  burrow  in  lanes  and  alleys,  where 
they  form  the  worst  associations  and  personal  habits.  They 
are  without  the  ordinary  amount  of  imagination,  and  so  with- 
out the  common  ambition  of  the  non-criminal  of  their  class 
in  society.  As  a  whole  the  prisoners  are  indolent,  unstable, 
reckless,  and  unable  to  compete  in  industry  with  the  normal 
workers,  and  perhaps  they  are  as  unable  as  they  are  indis- 
posed to  contend  with  the  temptations  of  vice  and  crime. 
Many  of  them  are  dishonest,  dishonorable,  merciless,  and 
base.  .  .  .  They  are  as  a  class  naturally,  and  it  may  be 
inevitably,  criminal."  ' 

These  inmates  are  not  children,  but  adults  ;  as 
the  present  laws  in  different  States  limit  com- 
mitments to-  criminals  ranging  variously  between 
sixteen  and  thirty  years  of  age.  The  average  age 
of  those  sent  to  Elmira  was  twenty-one  years  ;  55.8 
per  cent,  of  whom  were  between  sixteen  and 
twenty.* 

The  necessities  of  society  will  for  some  time  re- 
quire accommodations  for  a  large  population,  an 
expensive  plant  for  their  successful  treatment,  and 
a  large  number  of  scientific  experts  entitled  to  high 
salaries.  Motives  of  economy  will  therefore  com- 
pel the  State  to  collect  considerable  numbers  of 
criminals  in  every  reformatory  prison.  They  will 
consequently  have  to  be  subdivided  for  general 

1  The  Reformatory  System  in  the   United  States,  igoo,  Z.  R.   Brock  way, 
p.  23.  *  Ibid., 


164  The  Science  of  Penology 


treatment  into  classes,  according  to  their  diversi- 
ties of  character,  so  that  specialists  may  be  brought 
into  direct  contact  with  individuals,  study  the  pe- 
culiarities of  each,  and  adapt  the  remedial  meas- 
ures to  each  particular  case.  Mr.  Brockway  says x  : 

"  The  principle  of  classification  is  a  fundamental  requisite 
for  any  useful  effort  at  reforming  criminals  ;  and  its  practical 
extension  at  Elmira  may  be  thus  described  : 

"  (A)  There  are  three  character  grades,  with  two  sub-grades, 
one  for  incorrigibles,  the  other  for  some  who  seem  to  be  cured 
of  their  criminal  intent,  but  for  one  reason  or  another  are  de- 
tained in  service,  with  or  without  pay.  This  last  sub-grade  is 
very  small.  The  privileges  of  each  grade  differ,  the  object  of 
the  whole  scheme  being  to  intensify  motives  for  self-support 
and  improvement. 

"  (B)  There  are  three  intellectual  grades,  comprised  in 
twenty-eight  classes  for  mental  development  and  school  in- 
struction and  common  knowledge. 

"  (C)  All  are  then  classified  in  trade  classes,  dependent  on 
idiosyncrasies  and  earning  opportunities  ;  the  aim  being  to 
fit  each  one  for  easily  earning  an  honest  living,  with  legitimate 
pleasures,  in  free  society. 

"(D)  Again  they  are  classified  in  sixteen  military  com- 
panies (four  battalions  and  a  regiment),  for  drill  and  training, 
and  the  inculcation  of  the  manly  feeling,  bearing,  and  move- 
ment thus  likely  to  be  gained. 

"(E)  For  the  third  time  they  are  classified  ;  now  by  relig- 
ious persuasions,  either  of  themselves  or  their  families,  into 
Roman  Catholic,  Protestant,  and  Hebrew  divisions  ;  not  to 
maintain  or  promote  sectarianism,  but  for  better  impressing 
the  men  themselves,  and  incidentally  to  cultivate  a  tendency 
for  religious  association,  when  released,  with  others  of  their 
own  faith. 

1  The  Reformatory  System  in  the  United  States,  1900,  Z.  R.  Brockway, 
P-  35- 


The  Reformation  of  Criminals         165 


"(F)  The  specially  defective  are  next  divided  in  three 
groups,  each  representing  persons  of  like  deficiency.  The 
first  group  contains  those  mathematically  incompetent  ;  the 
second  those  grossly  deficient  in  morals,  and  the  third  those 
generally  dull.  These  groups  are  again  subdivided  into  sec- 
tions for  training  by  manual  exercise,  which  may  aid  them  to 
overcome  their  respective  defects.  Thus  this  whole  special 
classification  forms  a  manual  training  class,  occupying  the 
time  each  day  for  these  persons  which  is  not  taken  up  with 
the  general  reformative  work. 

"  (G)  A  smaller  number  are  in  the  physical  training  (or 
renovation)  group,  made  up  of  the  anaemic  and  undeveloped, 
the  semi-invalids,  the  feeble-minded,  those  showing  mental 
aberration,  the  sexual  perverts,  the  moral  imbeciles  ;  to  whom 
are  added  all  prisoners  newly  arrived,  who  for  a  month  are 
treated  with  baths  and  physical  exercise  in  the  gymnasium. 
The  aim  here  is  to  repair  and  fit  the  organism  for  its  normal 
functions,  increasing  nervous  energy,  and  thus  strengthening 
the  character." 

The  general  plan  of  treatment  of  all  classes  is 
discipline  resting  upon  the  law  of  habit. 

"  We  are  all  creatures  of  habit,  physical  and  merital.  Habit 
is  formed  by  repetition  of  any  action.  Many  of  our  physical 
habits  have  become  automatic."  [This  is  equally  true  of  men- 
tal and  moral  habits.]  "  Without  entering  into  a  physiological 
argument,  we  know  that  repetition  produces  habit,  and  that,  if 
this  is  long  continued,  the  habit  becomes  inveterate.  We  also 
know  that  there  is  a  habit,  physical  and  moral,  of  doing  right 
as  well  as  doing  wrong.  The  criminal  has  the  habit  of  doing 
wrong.  We  propose  to  submit  him  to  influences  that  will 
change  that  habit.  We  also  know  that  this  is  not  accom- 
plished by  suppressing  that  habit,  but  by  putting  a  good  one 
in  its  place."  ' 

1  The  Reformatory  System  in  the  United  States,  1900,  Dr.  Charles 
Dudley  Warner,  p.  78. 


166  The  Science  of  Penology 


Mr.  Brockway  says : 

"  The  aim  is  his  [the  prisoner's]  moral  regeneration  by  the 
method  of  habitual  practice — by  habitude.  Under  play  of 
this  motive  [love  of  liberty]  chiefly,  a  majority  of  prisoners 
are  induced  to  try  to  regulate  themselves  according  to  the 
plan  mapped  out  for  them.  That  which  is  required  of  the 
prisoners  under  this  system  is  most  carefully  regulated  by 
the  standard  of  requirements  for  orderly  behavior,  under  the 
laws  and  government  of  free  society,  so  that  by  observing  the 
conditions  necessary  for  progress  toward  liberation  from  prison 
two  most  valuable  habits  are  engendered,  namely,  the  habit  of 
quick  and  accurate  adjustment  to  good  environment,  and  the 
habit  of  forethought.  For  the  lack  of  these  two  habits  many 
prisoners  fall  into  crime.  It  is  found  that  a  majority  of  pris- 
oners may  in  this  way  by  this  motive  be  led  to  exert  them- 
selves for  change  of  habit,  but  a  considerable  number  require 
for  such  a  painful  effort  a  further  appeal  to  desires  more  im- 
mediately within  the  new  experience.  The  wants  of  the 
prisoners  constitute  the  initial  agency  for  their  improvement, 
the  available  motive  to  urge  them  along  the  rugged  path  of 
reformation.  Only  motivelessness  is  the  state  of  incorrigibility. 
To  discover  or  create  a  want  is  to  find  a  motive.  Given  a 
motive  you  may  direct  a  habit.  To  form  a  habit  is  to  create 
character.  Habit  is  the  school  of  conscience.  Conscience 
and  habit  reinforce  one  another."  ' 

The  methods  which  are  employed  to  break  up 
the  evil  habits  induced  by  inheritance,  or  contracted 
during  a  neglected  or  badly  nurtured  childhood, 
confirmed,  perhaps,  by  some  years  of  repetition  in 
corrupting  associations,  and  the  substitution  for 
them  of  habits  of  self-control  and  lawobserving 
life,  must  necessarily  be  rigorous,  inexorable,  com- 

1  The  Reformatory  System  in  the  United  States,  1900,  Z.  R.  Brockway, 
p.  27. 


The  Reformation  of  Criminals         167 


prehensive,  and  incessant.  They  are  governed  by 
the  natural  law,  that  normal  function  by  the  sys- 
tem depends  upon  the  healthy  condition  and  action, 
and  the  proper  relation  of  all  its  organs.  As 
practised  at  Elmira  these  methods  have  three 
principal  lines  of  direction. 

The  first  is  physical  ;  designed  to  cure  whatever 
bodily  disease  affects  the  person  ;  to  restore  to  a 
natural  efficiency  organs  and  members  which  have 
become  weak  from  disease  ;  to  develop  those  which 
are  atrophied,  or  to  induce  sufficient  substituted 
action  in  the  case  of  those  which  are  permanently 
dormant  or  wanting.  This  is  the  special  depart- 
ment of  the  physician.  It  affords  a  most  useful 
and  interesting  field  for  scientific  investigation, 
experiment,  and  achievement.  The  patient  is 
under  the  complete  control  of  the  physician.  His 
diet  and  nutriment,  his  rest,  occupation,  and  exer- 
cises, physical  and  mental,  are  exactly  regulated, 
and  every  therapeutic  agency  is  adapted  to  his 
peculiar  requirements.  The  response  of  his  nature 
to  the  remedies  is  continually  tested  and  noted. 
The  treatment  is  not  restricted,  as  in  ordinary 
practice,  to  the  cure  of  the  disease,  but  compre- 
hends the  eradication  of  its  proegumenal  and 
synectic  causes.  It  is  continued  until  the  physical 
condition  is  brought  up,  if  possible,  to  an  approxi- 
mately normal  condition  of  health,  vigor,  and 
function.  So  that,  with  a  proportionate  intelli- 
gence, the  decisions  and  judgments  of  the  brain 
will  be  at  least  lawfully  rational,  and  its  volitions 


168  The  Science  of  Penology 


legally  correct.  Technical  training  in  trade  classes 
is  given  every  prisoner  to  fit  him  for  an  honorable 
self-support  when  liberated. 

The  second  line  of  reformative  discipline  is 
intellectual ;  under  the  joint  direction  of  the  physi- 
cian and  the  principal  instructor.  Its  design  is  the 
cure  of  mental  defects,  by  stimulating  and  develop- 
ing those  organs  of  the  brain  which  are  weak  and 
inoperative.  It  has  been  demonstrated  in  the 
experience  of  instructors  that  a  uniform,  harmoni- 
ous cultivation  of  all  the  faculties  of  the  brain  is 
necessary  to  insure  reasonably  correct  function 
and  volition.  It  has  also  been  demonstrated  that 
its  dormant  or  weak  faculties,  in  most  cases,  can 
be  excited  to  action  and  strengthened  by  inspira- 
tion and  exercise.  This  is  particularly  true  of  the 
faculties  of  reasoning  and  volition,  which  are  func- 
tions of  the  cerebrum.  If  the  cerebellum  has  had 
an  inordinate  development,  while  that  of  the  cere- 
brum has  been  arrested  or  retarded,  action  is 
dominated  by  the  physical  or  animal  instincts, 
desires,  and  passions.  The  result  is  error,  violence, 
moral  depravity — the  criminal.  It  is  the  province 
of  the  physical  and  mental  doctors  to  restore  the 
equilibrium  of  the  faculties  of  the  criminal  brain, 
the  control  of  action  by  reason  and  volition,  and 
to  lift  the  criminal  by  education  out  of  the  animal 
class  toward  which  he  was  reverted. 

The  third  direction  of  reformation  is  the  line  of 
morality.  It  is  guided  by  the  chaplain,  who  secures 
the  co-operation  of  all  the  officials  and  attendants 


The  Reformation  of  Criminals         169 


in  order  to  display  the  advantages  and  instil  the 
practices  of  order,  regularity,  truth,  honesty,  unself- 
ishness, and  religion.  The  design  is  to  implant 
the  cardinal  principles  of  morality  and  religion  in  the 
mind  and  soul,  to  develop  conscience  and  fit  it  to 
control  the  human  machine  without  the  compulsion 
of  the  prison.  This  is  the  finishing  stage  of  refor- 
mation, although  it  begins  when  the  prisoner  first 
enters,  and  continues  without  intermission  until  he 
leaves.  There  can  be  no  real  reformation  until  the 
principles  of  righteousness  are  made  to  control  the 
life.  The  methods  of  the  chaplain  are  governed 
according  to  the  famous  antithetical  epigram  of  Dr. 
Horace  Bushnell,  which  is  recognized  as  a  funda- 
mental law  of  Penology,  that  "  The  soul  of  all 
improvement  is  improvement  of  the  soul." 

The  means  which  have  been  found  most  success- 
ful in  promoting  these  designs,  substituting  correct 
habits  for  bad,  and  transforming  the  criminal  into 
a  safe  citizen,  are  these  :  The  prisoner  upon  his 
arrival  is  given  a  bath  ;  he  is  shaved,  has  his  hair  cut, 
and  receives  a  suit  of  the  plain  uniform  worn  by 
the  intermediate  or  second  grade  of  the  three  into 
which  all  the  prisoners  are  divided.  He  is  meas- 
ured by  the  Bertillon  method,  for  the  purpose  of 
looking  up  his  record,  if  he  has  one,  and  for  future 
identification  ;  and  then  he  is  locked  in  his  cell  for 
a  day  or  two  of  reflection.  After  this  opportunity 
to  come  to  what  senses  he  has  he  is  taken  before 
the  superintendent.  This  officer  makes  an  exhaust- 
ive examination  of  his  physical,  mental,  and  moral 


1 70  The  Science  of  Penology 


condition,  and  ascertains  the  character  and  habits 
of  his  parents  as  to  honesty,  temperance,  industry ; 
as  well  as  what  his  home  life  has  been,  his  habits, 
and  associations.  His  physique  is  carefully  exam- 
ined as  to  health,  normal  completeness,  inherited 
peculiarities,  fineness  or  coarseness  of  texture.  His 
mental  capacity  and  education  are  ascertained,  his 
moral  character  determined :  as  to  its  fibre,  sense 
of  right  or  wrong,  of  shame,  susceptibility  to  praise 
or  blame,  religious  principles  or  beliefs.  The  re- 
sults are  summarized  in  a  ledger,  together  with 
those  of  the  examination  made  by  the  physician, 
and  from  them  the  assignment  to  the  various  classes 
is  made  by  the  superintendent,  according  to  health, 
character,  education,  and  disposition. 

The  physician  prescribes  a  regimen  of  hygiene 
and  sanitation  ;  which  includes,  besides  such  medi- 
cation as  may  be  necessary,  and  the  proper  weight 
and  quality  of  food  ;  massage,  baths,  and  the  calis- 
thenic,  gymnastic,  and  mental  exercises  and  manual 
training  needed  for  the  development  of  weak  or 
inoperative  organs. 

The  superintendent  explains  to  the  newcomer 
the  reasons  for  his  confinement,  the  course  of  treat- 
ment to  which  he  is  to  be  subjected,  the  maximum 
time  limit  of  his  imprisonment,  and  the  conditions 
on  which  he  may  shorten  this  term,  and  even  win 
release  in  one  year,  at  Elmira.  A  printed  copy  of 
the  rules  and  regulations  of  the  reformatory  is 
given  him,  and  he  is  informed  that  everything  he 
receives  from  the  State  (except  the  first  suit  and 


The  Reformation  of  Criminals         171 


first  meal),  clothing,  food,  instruction,  doctoring, 
as  also  fines  for  demerits,  misbehavior,  want  of 
application  and  interest  in  self-improvement,  will 
be  charged  against  his  account  at  the  specified 
rates  ;  and  that  he  will  receive  credit  for  good  de- 
meanor, military  drill  and  discipline,  application 
and  merit  in  school,  manual  training,  the  quantity 
and  quality  of  work  done  in  the  industrial  depart- 
ments, and  progress  in  morality.  He  is  at  once 
placed  in  the  condition  of  a  wage-earner  and  re- 
quired to  maintain  a  credit  balance,  which  must  be 
sufficient,  when  parole  is  given,  to  defray  travelling 
and  other  necessary  expenses  to  the  place  of  em- 
ployment. The  rate  per  day  for  work  is  least  in 
the  lower  first  and  second  grades ;  increased  in  the 
upper  grades.  Time  spent  in  military  drill  is  cred- 
ited at  grade  rates  for  privates,  and  increased 
rates,  according  to  rank,  for  officers.  A  perfect 
monthly  record  in  conduct,  study,  and  labor  is  one 
wherein  the  losses  do  not  amount  to  one  dollar.  To 
maintain  grade,  marking  must  be  above  seventy-five 
per  cent,  in  all  three  divisions.  Reduction  in  grade  is 
incurred  by  an  imperfect  record  for  two  successive 
months:  for  crookedness,  quarrelling,  licentiousness, 
insubordination,  and  such  disregard  of  rules  or 
requirements  as  shows  indifference  to  progress,  or 
great  want  of  self-control.  Promotion  to  the  upper 
first  grade  is  gained  by  maintaining  a  perfect  record 
for  six  months.  Six  months  of  good  performance 
under  somewhat  enlarged  liberties  and  privileges 
in  the  upper  first  grade,  if  the  confidence  of  the 


172  The  Science  of  Penology 


management  and  employment  outside  have  been 
secured,  entitles  to  a  parole.  Six  months  of  good 
conduct  on  parole  usually  secures  a  complete  re- 
tease.  Having  made  him  understand  as  fully  as 
he  can  that  his  release  depends  upon  his  own  hon- 
est and  active  co-operation,  the  prisoner  receives 
his  billet  and  number,  is  turned  into  the  machine, 
and  the  work  of  purgation  and  reformation  is 
begun. 

At  Elmira  the  bugle  sounds  the  working-day 
routine  as  follows  :  Reveille  at  5.40  A.M.,  Fatigue 
call  5.50  A.M.,  Assembly  6.00  A.M.  for  breakfast, 
Recall  6.35  A.M.,  Return  to  cells  6.55  A.M.,  Officers' 
call  (officers'  bucket  turnout)  7.05  A.M.,  Fatigue  call 
(general  bucket  turnout)  7.10  A.M.,  Assembly 
(turning  out  with  buckets)  7.35  A.M.,  Fatigue  call 
(shop  turnout)  7.40  A.M.,  Assembly  (turnout  for 
work)  12.00  M.,  First  whistle,  12.05  p-M-»  Second 
whistle,  return  from  shop,  12.17  to  I2-47  p-M-»  Din- 
ner, i.oo  P.M.,  Whistle  for  work,  3.35  P.M.,  First 
whistle,  cease  work,  3.40  P.M.,  Second  whistle,  turn 
out  for  armory.  After  drill  and  dress  parade  the  in- 
mates are  marched  to  their  dining-rooms,  take  sup- 
per, are  counted  and  marched  to  their  cells ;  6.00 
P.M.,  School  call  (trade  school  evening)  ;  6. 15  P.M., 
Assembly  for  trade  school  (on  school-of-letters  even- 
ings these  calls  are  at  6.20  and  6.35  P.M.)  ;  8.30  P.M,, 
First  call,  Recall  of  officers  ;  8.35  P.M.,  Recall  of  in- 
mates to  their  cells;  9.00 P.M., Tattoo;  9.30 P.M., Taps, 
lights  out.  Thus  the  prisoner  is  held  in  the  firm 
grasp  of  disciplinary  training  during  every  working 


The  Reformation  of  Criminals         173 


moment  and  brought  to  the  hour  of  sleep  tired 
enough  to  welcome  it,  and  the  habit  of  an  orderly 
life  is  instilled. 

Those  who  require  special  physical  development 
are  exercised  regularly  in  a  gymnasium  fitted  with 
all  kinds  of  apparatus,  where  steam  baths  and  mas- 
sage can  be  given,  under  the  supervision  of  a  skilled 
physical  director.  For  the  defective,  weak,  and 
dull,  manual  training,  athletics,  calisthenics,  sloyd, 
etc.,  are  provided. 

Organic  defects  are  treated  in  the  gymnasium 
under  the  prescription  and  supervision  of  a  skilled 
physical  director.  Regular,  scientifically  designed 
exercises,  baths,  and  massage  are  employed  to  re- 
store a  healthy  action  of  the  skin  and  digestive 
organs,  and  to  purify  the  blood.  Weak  and  inop- 
erative organs  are  developed  and  a  normal  balance 
of  powers  and  faculties,  to  a  greater  or  less  extent, 
restored.  This  treatment,  indeed,  is  administered 
to  all  the  inmates  according  to  their  peculiarities. 

Those  prisoners  whose  defects  or  diseases  are  so 
great  as  to  render  them  unable  to  maintain  them- 
selves in  the  general  classes  are  assigned  to  the 
joint  care  of  the  manual-training  and  the  physical 
director.  These  are  the  defectives  who  under  the 
standard  methods  of  general  treatment  would  re- 
main unresponsive  and  incorrigible  ;  the  weak,  dull, 
and  excessively  debased.  They  are  classified  in 
three  groups  : 

First,  the  mathematical  defectives,  who  are  given 
mental  and  physical  treatment,  for  improving  the 


174  The  Science  of  Penology 


functions  of  ratiocination  ;  physical  exercise  of  weak 
organs,  and  the  use  of  tools  illustrating  mathe- 
matical problems  which  reflexively  strengthen  the 
brain.  Fifty-six,  or  46  per  cent,  of  those  subjected 
to  this  course  at  Elmira  became  susceptible  to 
general  treatment. 

Second,  the  control  defectives,  who  lack  sufficient 
power  of  self-control  to  adjust  themselves  to  their 
new  environment,  and  require  a  strengthening  of 
volition,  and  correction  of  the  power  of  evil  habits 
and  desires  to  enable  them  to  submit  to  the  regula- 
tions, and  avail  themselves  of  the  benefits  of  the 
general  course.  Their  isolation  is  necessary  to 
protect  the  less  depraved  from  contamination,  as 
well  as  to  receive  treatment  for  the  removal  of  the 
physical,  mental,  and  moral  lesions  which  diminish 
both  their  self-respect  and  their  respect  for  order 
and  authority.  They  are  surrounded  by  the  more 
intensive  atmosphere  of  the  training  school,  and  are 
occupied  with  mechanical  drawing,  sloyd,  pattern- 
making,  wood-turning,  geometric  constructions, 
athletics,  calisthenics,  and  baths ;  and  are  given 
moral  and  physiological  instruction.  Seventy-six 
cases  of  this  group,  or  29  per  cent,  of  those  treated 
in  this  way  at  Elmira,  were  made  susceptible  to 
general  treatment. 

Third,  the  general  defectives.  These  are  the 
lowest  grade  of  convicts,  mentally  and  physically  ; 
mostly  the  product  of  bad  heredity  for  generations, 
hanging  on  the  borders  of  imbecility,  insanity, 
total  depravity,  complete  ignorance,  and  incurable 


The  Reformation  of  Criminals         175 


deformity.  They  are  carefully  and  patiently  treated 
with  physical  training  and  exercises,  baths,  massage, 
manual  processes,  and  related  elementary  instruc- 
tion,— free-hand  drawing  from  solids,  elementary 
sloyd,  clay  modelling,  mental  arithmetic,  and  sen- 
tence building.  Of  55  subjects  of  this  class,  32,  or 
over  58  per  cent,  were  rendered  susceptible  to 
general  treatment  during  1898-99  at  Elmira  by  this 
regime.  Of  the  1 169  cases  treated  there  in  this  way 
during  these  two  years,  439,  or  37  per  cent,  were 
graduated  as  susceptible  to  general  treatment. 

The  dietary  of  reformatory  prisoners  should  be 
scientifically  prescribed  for  the  promotion  of  health 
and  strength ;  and  not  limited,  as  in  ordinary 
prisons,  to  economical  subsistence.  As  a  stimulus 
to  all,  the  best  grade  of  inmates  should  have  the 
privilege,  when  they  have  a  credit  balance,  of 
choosing  their  meals  a  la  carte  from  a  menu  of 
larger  variety  and  better-cooked  and  -served  food  ; 
the  dishes  ordered,  to  be  paid  for  at  a  fixed  rate. 

Technical  training  in  more  than  thirty-five  differ- 
ent trades  is  given  in  trades  classes  to  all  who  are 
able  to  take  it.  There  are  classes  in  stone-masonry, 
stone-cutting,  bricklaying,  plastering,  carpentry, 
joinery,  cabinet-making,  upholstering,  plumbing, 
tinning,  steam-  and  gas-fitting,  house-painting, 
paint-mixing,  frescoing,  sign-painting ;  in  architec- 
tural and  mechanical  drawing,  pattern-making, 
moulding,  casting,  iron-forging,  the  machinist's 
trade,  brass-founding,  casting  and  finishing,  black- 
smithing,  horse-shoeing ;  in  baking,  barbering, 


The  Science  of  Penology 


book-binding,  clothing  cutting,  cooking,  hardwood 
finishing,  machine  wood-working,  music,  photog- 
raphy and  etching,  printing,  shoemaking,  ste- 
nography and  typewriting,  tailoring,  telegraphy, 
wood-carving,  and  wood-turning. 

Only  14.7  per  cent,  of  those  sent  to  Elmira  dur- 
ing its  existence  were  engaged  in  mechanical  work 
before  arrest.  Every  one  who  leaves  must  know 
enough  of  some  trade  to  be  able  to  earn  a  living  at 
it.  Often  the  maximum  limit  of  confinement  under 
the  limited  sentence  cuts  short  the  time  necessary 
for  the  full  acquirement  of  a  trade,  to  the  restriction 
of  the  paroled  man's  skill  and  earning  capacity. 
This  affords  some  real  basis  for  the  jealous  objec- 
tions raised  by  mechanics,  who  have  served  their 
full  time,  against  prison-taught  mechanics. 

Military  organization,  exercises,  drill,  and  dis- 
cipline have  been  found  to  be  very  efficacious  in  the 
reformation  of  criminals.  Habits  of  erect  and 
manly  carriage  of  the  person,  care  of  physical 
health,  of  order,  of  personal  cleanliness  and  neat- 
ness, of  prompt  and  exact  obedience  to  constituted 
authority,  of  concentrated  attention,  of  quick  and 
accurate  response  of  action  to  volition  ;  of  memory, 
of  attention  to  musical  rhythm  in  the  manual  of 
arms,  company  movements,  and  marching  are  in- 
culcated by  military  discipline  and  continual  drill 
better  than  in  any  other  way  yet  discovered.  At 
the  same  time  the  interest  of  the  prisoner  is  awak- 
ened by  the  attractiveness  of  military  movements, 
and  his  attention  directed  to  the  power  of  organiza- 


The  Reformation  of  Criminals         1 77 


tion,  of  social  union,  and  subjection  to  law  and  or- 
der. His  ambition  is  aroused  by  the  hope  of 
promotion,  and  of  the  greater  privileges,  pay,  honor, 
and  pleasure  of  command  which  he  sees  officers 
enjoy ;  whose  positions  he  observes  may  be  his, 
in  time,  if  he  is  qualified.  (All  company  non- 
commissioned offices  are  filled  by  the  best  qualified 
prisoners.)  No  other  course  of  training  has  ever 
been  devised  which  gives  as  wide,  as  diversified,  as 
thorough,  as  easily  imparted  a  range  of  elementary 
physical,  mental,  and  moral  culture  to  the  lower 
orders  of  humanity.  Regular  and  constant  drill 
soon  fixes  military  habits  so  firmly  that  they  be- 
come in  time  a  part  of  nature.  The  objection 
which  has  been  raised,  that  it  is  dangerous  to  impart 
military  instruction  to  the  criminal  class,  has  no  real 
basis,  so  far  as  the  reformatory  is  concerned ;  for 
the  privates  are  only  disciplined  and  taught  to 
march,  obey  orders,  and  carry  dummy  guns.  They 
are  not  taught  the  real  business  of  the  soldier — how 
to  use  the  gun.  The  officers  and  most  proficient 
are  reformed  out  of  the  criminal  class  ;  the  incorri- 
gible should  remain  in  confinement  ;  if  liberated 
they  would  be  incapable  of  using  their  acquired 
knowledge  to  the  public  damage.  The  writer  was 
strongly  impressed  with  the  truth  of  these  observa- 
tions while  witnessing  recently  the  drill  and  dress 
parade  at  Elmira  of  thefour-battalion  regiment  of  960 
convicts,  whose  general  appearance  indicated  a  lower 
order  of  physique  and  mentality  than  one  is  accus- 
tomed to  see  in  the  ranks  of  American  soldiery ; 


178  The  Science  of  Penology 


yet  it  would  be  difficult  to  find  any  three-battalion 
regiment  in  the  country  (excepting  three  or  four  of 
the  best-drilled)  in  which  the  execution  of  orders 
is  more  uniform,  exact,  and  "  snappy  "  than  in  this. 
It  was  astonishing  to  see  these  four  battalions  exe- 
cute a  "  silent  manual "  of  thirty-six  changes  of 
arms  without  a  noticeable  break,  and  conclude  it 
with  an  "order  arms "  in  perfect  unison.  It  was 
an  excellent  exercise  and  test  of  memory.  The 
military  is  a  natural  connecting  link  between  the 
physical  and  mental  training ;  a  combination  and 
fixing  in  habit  of  the  elementary  processes  of  all 
three  lines  of  reformation.  About  10  per  cent,  of 
the  inmates  of  Elmira  are  physically  disqualified 
for  military  drill. 

The  discipline  of  the  institution,  the  prevention 
of  escapes,  guard  duty,  the  organization  for  the 
prevention  and  extinguishment  of  fires,  the  ordinary 
police  duties  for  cleanliness  and  sanitation,  the 
preservation  of  order,  the  enforcement  of  the  rules 
and  regulations,  are  placed  under  the  immediate 
direction  of  the  military  commander.  He  sits  in  a 
field  officers'  court,  consisting  of  at  least  three  field 
officers  and  a  judge  advocate,  at  certain  fixed  hours 
of  each  work-day,  before  which  inmates  charged 
with  infraction  of  rules,  disobedience,  misdemeanors, 
or  misbehavior,  are  brought  and  tried.  The  accused 
is  protected  by  all  the  privileges  and  usages  of  the 
military  code  in  courts  martial ;  may  introduce  evi- 
dence, and  make  defense.  The  finding  of  the  court 
is  submitted  to  the  superintendent  for  approval, 


The  Reformation  of  Criminals         1 79 


modification,  or  execution.  Thus  the  prisoner  is 
protected  from  injustice,  abuse,  or  undue  severity 
of  wrathful  punishment.  The  prisoner  is  even  per- 
mitted to  bring  charges,  properly  substantiated, 
against  other  prisoners,  or  even  against  keepers  or 
officials  who  may  have  maltreated  him.  No  keeper 
or  official  is  allowed  to  use  violence  or  inflict  pun- 
ishment upon  a  prisoner,  except  under  orders  of 
this  court,  under  any  circumstances.  So  the  prisoner 
is  impressed  with  the  beneficence  and  necessity  of 
the  government  or  supremacy  of  law. 

There  are  found  in  reformatories,  as  well  as  in  all 
other  prisons,  those  who  are  so  entirely  devoid  of 
mental  and  moral  sensibility  when  committed,  as  to 
be  beyond  the  reach  of  any  incentive  or  punish- 
ment except  physical  pain.  Their  nature  is  but  lit- 
tle above  the  animal.  For  such  persons  the  general 
experience  of  wardens  of  prisons,  after  trial  of  bread 
and  water  in  dungeons,  deprivation  of  all  privileges, 
showers  of  water,  tying  up  in  a  standing  position, 
and  other  ingenious  methods  of  inflicting  pain  or 
discomfort  humanely,  has  found  spanking  with  a 
piece  of  sole  leather  softened  by  soaking  in  water 
the  most  effective,  immediate,  certain,  and  humane 
punishment.  It  should  always  be  administered 
after  a  reasonable  delay,  to  avoid  the  appearance  of 
anger,  by  finding  of  the  court ;  in  the  presence,  if 
not  by  the  hands,  of  the  superintendent. 

The  purchase  and  issue  of  supplies,  the  cooking, 
baking,  and  feeding  of  the  inmates  and  officials, 
and  the  keeping  of  the  financial  accounts  of  the 


i8o  The  Science  of  Penology 


institution  should  be  under  the  immediate  charge  of 
the  military  commissary,  assisted  by  clerks  and 
detailed  prisoners. 

The  physical  director  has  charge  of  the  Bertil- 
lon  records,  and  the  books  of  demeanor  and  pro- 
gress. Much  of  the  bookkeeping  of  the  institution 
can  be  done  by  the  prisoners,  both  as  a  matter  of 
economy  and  educational  training. 

The  purely  mental  influences  are  exerted  in  the 
"  school  of  letters,"  in  charge  of  a  school  director, 
with  capable  assistants  and  lecturers,  many  of 
whom  are  distinguished  men  from  outside.  Edu- 
cational methods,  processes,  and  devices  are  inspired 
and  governed  by  the  known  laws  of  mentality. 
They  are  particularly  directed  to  the  development 
of  attention,  interest,  and  will.  At  Elmira  in  1899 
the  studies  were  arithmetic,  twenty-five  classes 
with  eleven  grades  ;  language,  twenty-one  classes 
of  nine  grades  ;  nature  studies,  history,  literature, 
and  ethics  ;  all  but  the  first  two  taught  by  lectures. 
Arithmetic  is  used  to  develop,  first,  the  reasoning 
processes  ;  second,  to  develop  and  train  in  quick- 
ness of  perception  ;  third,  to  develop  and  train  in 
practical  business  habits  of  mechanical  execution 
and  accuracy.  Language  teaching  is  used  to  en- 
courage men  to  think  and  express  their  thoughts ; 
and  to  develop  a  reasonable  degree  of  proficiency 
in  penmanship,  spelling,  and  the  proper  arrange- 
ment of  words  and  sentences.  The  school  of 
letters  is  intended  to  be  quite  as  much  a  thera- 
peutic as  an  educational  expedient.  The  studies 


The  Reformation  of  Criminals         181 


pursued  and  the  methods  of  teaching  are  calculated 
to  stimulate  and  strengthen  those  faculties  of  the 
brain  the  inertness  or  weakness  of  which  has  been 
a  cause  of  criminality.  The  design  is  to  subject 
the  organs  of  volition,  impulse,  and  animal  instinct 
to  the  control  of  reason  and  sound  judgment. 
Both  studies  and  methods  must  be  adapted  to  the 
needs  of  ignorant  and  depraved  men,  and  there- 
fore are  necessarily  quite  different  from  those  used 
in  the  instruction  of  children.  This  is  shown  by 
the  size  of  the  classes,  which  are  smallest  in  the 
lower  grades  and  largest  in  the  higher,  reversing 
the  order  of  the  schools.  The  pedagogy  of  crimi- 
nals is  a  special  scientific  profession  of  high  order. 
A  carefully  selected  library  is  another  means  of 
mental  training.  Both  teaching  and  lectures  are 
made  to  excite  a  desire  and  taste  for  useful  read- 
ing. In  addition  to  the  library,  a  weekly  news- 
paper should  be  printed  and  published  by  the 
prisoners  under  the  editorship  of  the  school  di- 
rector. This  affords  a  means  of  instruction  in 
typesetting  and  printing,  in  composition,  report- 
ing, and  general  newspaper  work.  It  also  main- 
tains the  prisoners'  contact  with  free  society,  and 
keeps  them  informed  of  the  most  important  events 
transpiring  outside.  It  is  a  reproach  to  modern 
newspapers,  in  general,  that  it  is  absolutely  neces- 
sary to  prohibit  them  from  a  reformatory ;  that 
they  are  unfit  to  be  read  by  criminals  during  a 
process  of  reformation.  Charles  Dudley  Warner 
has  said  that  the  weekly  Summary  published  at 


1 82  The  Science  of  Penology 

Elmira  is  about  the  only  thoroughly  clean  family 
newspaper  he  knows  of.1 

The  moral  training  of  the  State  reformatory 
must  be  ethical  rather  than  religious.  The  cardinal 
American  principle  of  government,  the  absolute 
separation  of  Church  and  State,  must  be  respected 
there  as  elsewhere.  The  moral  instructor  or  chap- 
lain has  the  general  direction  and  supervision  of 
the  ethical  regeneration  of  the  inmates.  By  lect- 
ures, by  preaching,  by  Sunday-schools,  by  discus- 
sions, and  other  means  of  instruction,  it  devolves 
upon  him  to  guide  and  train  the  newly  stimulated 
organs  and  functions  of  the  prisoner  into  the  habits 
of  just,  true,  honest,  and  correct  action.  Because 
this  is  a  Protestant  Christian  State  ;  because  the 
very  inspiration  of  reformation  originates  in  Christ- 
ianity ;  because  both  its  altruistic  motives  and 
methods  are  Christian  ;  and  because  the  desired 
result  is  such  a  change  of  character  as  is  most 
complete  and  permanent  when  it  is  controlled  by 
Christian  principle,  it  is  necessary  that  the  moral 
instructor  should  be  an  earnest,  wise,  and  capable 
Christian.  Clergymen  of  all  religious  beliefs  should 
have  freedom  to  minister  to  those  of  their  own 
faith  in  prison,  but  the  official  religious  services  in 
all  State  institutions  in  this  country  ruled  by  the 
majority,  must  of  course  be  those  of  Protestant 
Christians,  who  constitute  the  majority. 

The  reformation  of  the  character  of  the  prisoner 
so  that  he  can  be  relied  upon  to  properly  control 

1  The  Reformatory  System  in  the  United  States,  tgoo,  p.  58. 


The  Reformation  of  Criminals        183 


his  action  when  relieved  from  the  stress  of  prison 
guardianship,  is  not  largely  effected  by  lectures  and 
instruction,  either  in  prison  or  out.  It  is  a  training 
for  the  universal  contest  of  humanity,  the  struggle 
of  mental  and  spiritual  powers  for  the  control  of 
animal  instincts,  the  war  of  which  St.  Paul  the 
Apostle  speaks,  "  the  law  of  my  members  warring 
against  the  law  of  my  mind,  and  bringing  me  into 
captivity  to  the  law  of  sin  which  is  in  my  members." l 

It  is  the  spirit  of  love,  which  is  God,  which  is 
omnipotent,  which  must  be  omnipresent  in  the  re- 
formatory, ever  ready  to  kindle  with  a  sympathetic 
touch  of  brotherhood  the  fires  in  the  new-built 
furnaces  of  life  at  the  right  moment,  which  must 
perfect  and  complete  the  work.  This  kindling 
spark  is  strongest  when  it  emanates  spontaneously 
from  the  daily  energies  of  a  good  man.  It  is 
therefore  of  the  utmost  importance  that  every  offi- 
cial, of  all  grades,  and  every  employee  in  the  re- 
formatory who  comes  in  contact  with  the  prisoner, 
should  be  a  thoroughly  good  man,  whose  every  act 
and  word  contrast  with  those  of  criminals,  and  who 
is  anxious  and  ready  at  all  times  to  impart  this  life- 
giving  spark. 

The  one  absolutely  indispensable  means  for  the 
reformation  of  criminals,  more  effective  than  all 
other  instrumentalities,  is  the  influence  of  the 
Christian  character  of  the  man  who  has  the  su- 
preme command.  He  must  himself  be  inspired 
with  overflowing  love  and  with  desire  for  the 

1  Romans  vii.,  23. 


1 84  The  Science  of  Penology 


salvation  of  the  men  committed  to  his  charge,  and 
must  possess  both  God-given  genius  and  acquired 
skill,  which  will  win  the  confidence  of  all,  and  guide 
them  with  an  imperceptible,  irresistible,  possibly 
hypnotic  power,  along  the  way  in  which  they  should 
walk.  The  daily  contact  with  a  good  man  is  a 
greater  power  than  any  sermon  ever  preached. 
Dr.  F.  H.  Wines  has  said  :  "  The  conclusion  at 
which  I  shall  have  arrived,  after  a  life  spent  in 
observing  the  operation  and  effect  of  all  conceiv- 
able prison  systems,  is  that  in  all  of  them,  the  best 
and  worst  alike,  the  men  who  are  saved  are  saved 
by  love,  and  by  nothing  else." 

The  moral  training  is  thus  carried  on  incessantly 
during  the  whole  period  of  confinement.  When 
the  physical  and  mental  training  have  accomplished 
their  objects,  and  the  human  system  operates  in 
correctly  adjusted  harmony,  altruistic,  moral,  and 
religious  incentives  will  have  supplanted  selfish 
animal  instincts  as  controlling  motives  of  conduct. 
Until  this  occurs,  credit  marks  for  progress  along 
these  lines,  demerit  marks  for  dereliction,  and 
charges  for  indulgences  supply  the  place  of  such 
incentives,  by  decreasing  or  extending  the  time  of 
imprisonment.  A  notice  or  bill  for  all  demerit  or 
other  charges  is  given  the  prisoner  promptly,  and 
a  statement  of  his  account  on  the  books  of  the 
institution  is  rendered  monthly.  Thus  the  prisoner 
is  constantly  informed  of  his  standing  and  progress 
toward  release. 

All  persons  above  sixteen  years  of  age  convicted 


The  Reformation  of  Criminals        185 


of  a  crime  the  penalty  of  which  is  less  than  imprison- 
ment for  life,  if  not  evidently  incorrigible,  incurably 
defective,  or  suffering  from  a  contagious  disease, 
should  be  committed  under  an  indeterminate 
sentence  to  the  reformatory.  The  reformatory 
should  not  be  encumbered  with  hopeless  cases,  nor 
the  public  burdened  with  the  cost  of  their  useless 
treatment.  But  whenever  in  the  opinion  of  the 
magistrate  there  is  reasonable  ground  to  believe 
a  cure  is  possible,  the  sentence  should  provide  an 
opportunity  for  adequate  treatment. 

The  labor  of  the  inmates  of  reformatories  has 
training  for  its  principal  object,  rather  than  pro- 
duction or  profit.  It  is  therefore  employed  in 
instructive  work,  such  as  building  houses  of  stone, 
brick,  and  wood,  complete  from  cellar  to  garret, 
with  gas-fitting,  plumbing,  painting,  tinning,  hard- 
wood finishing,  and  the  work  of  all  the  trades,  and 
other  such  constructions,  which  are  afterwards  taken 
down.  But  all  the  necessary  work  of  the  institu- 
tion, cooking,  baking,  washing,  tailoring,  etc.,  as 
well  as  repairs,  enlargements,  and  improvements, 
is  done  by  the  prisoners. 

The  conditions  of  release,  as  stated  by  Mr.  Brock- 
way,  are  threefold  : 

"  First,  the  records  made  in  the  three  departments,  which 
taken  together  constitute  for  all  men  in  or  out  of  prison  a  basis 
of  judgment  concerning  their  fitness  or  unfitness  to  live  at 
large  in  a  community,  namely  : 

"  (a)  The  demeanor  column  in  the  account,  which  represents 
the  prisoner's  ability  as  well  as  disposition  to  control  himself 
for  his  own  interest  and  welfare. 


186  The  Science  of  Penology 


"  (b)  The  school  column,  which  shows  mental  strength  and 
judgment  to  direct  his  own  good,  the  power  of  the  self- 
controlled  man. 

"  (c)  The  industrial  column,  which  reveals  skill  and  know- 
ledge in  industry,  the  wage-earning  capacity  of  the  man. 

"  Second,  it  is  a  condition  that  outside  the  record  thus  made, 
which  constitutes  the  marking  system,  the  candidate  for 
release  shall  have  the  reasonable  confidence  of  the  manage- 
ment of  the  reformatory,  whose  officers  must,  in  the  nature 
of  the  case,  be  best  acquainted  with  him  ;  confidence,  that 
impalpable  but  actual  sense  so  essential  to  men  in  their  ordi- 
nary intercourse  in  free  life,  which,  aside  from  capital  and 
capacity,  constitutes  a  basis  of  credit  in  commercial  affairs, 
and  of  trustfulness  in  domestic  and  personal  relations. 

"  Third,  the  remaining  condition  is,  that  the  candidate  for 
release  shall  have  found,  or  have  had  provided  for  him,  im- 
mediate industrial  engagement  at  the  trade  taught  him,  which 
should  be  the  calling  he  should  have  followed,  which,  if  he 
had  followed  it,  would  usually  have  saved  him  from  crime 
and  imprisonment. 

"  The  release  is,  moreover,  at  first  tentative,  on  parole.  The 
paroled  inmate  is  held  under  legal  control,  the  surveillance 
of  the  officers  of  the  law,  and  friendly  supervision  of  the 
superintendent,  to  whom  monthly  reports  are  made,  certified 
by  the  employer  and  the  nearest  magistrate,  showing  earnings, 
savings,  habits  of  life,  and  conduct  for  six  months  or  more, 
until  it  is  demonstrated  that  he  is  adjusted  to  lawful,  orderly 
behavior,  with  self-sustaining  industry  and  opportunity." 

At  the  expiration  of  a  period  sufficiently  extended 
to  secure  confidence  in  his  ability  to  live  as  a  good 
citizen,  he  is  finally  discharged  into  the  full  free- 
dom of  social  life. 

During  the  existence  of  the  Elmira  reformatory 
218  of  its  paroled  inmates  have  been  furnished  em- 
ployment at  their  own  request  in  the  institution  for 


The  Reformation  of  Criminals        187 


periods  ranging  from  one  month  to  four  years  and 
four  months,  at  the  same  pay  as  is  given  to  em- 
ployees from  outside.  Their  accumulations  during 
such  employment  ranged  from  $21.49  to  $960. 9 7.1 

Of  the  6190  prisoners  paroled  under  the  limited 
indefinite  sentence  law,  7.6  per  cent,  secured  their 
parole  after  only  twelve  months  521.7  per  cent,  after 
from  thirteen  to  fifteen  months;  14.9  per  cent,  after 
sixteen  to  eighteen  months  ;  2 1  per  cent,  after  from 
nineteen  to  twenty-four  months  121.3  Per  cent,  after 
from  twenty-five  to  thirty-six  months  ;  and  13.5  per 
cent,  after  thirty-six  months.2  In  view  of  the  very  low 
character  of  those  committed,  the  brevity  of  the 
average  detention  before  achieving  parole,  which 
was  21.2  months,  is  not  only  remarkable  in  itself, 
but  when  conjoined  to  the  fact  that  at  least  83.4 
per  cent,  of  those  paroled  appear  to  have  been  per- 
manently reformed,  is  an  impressive  demonstration 
of  the  efficacy  of  this  system. 

As  normal  youths,  who  have  received  a  common- 
school  education,  are  required  to  serve  a  four-  or  five- 
years'  apprenticeship  in  acquiring  a  trade,  or  pass 
three  years  in  a  preparatory  school  for  admission  to 
college,  followed  by  a  four  years'  college  course,  be- 
fore they  are  well  fitted  for  independent  self-support 
and  good  citizenship,  while  three  or  four  years  more 
of  special  study  are  required  for  admission  into  the 
learned  professions,  it  is  manifest  that  the  best  re- 
sults of  the  reformatory  treatment  of  criminals  can- 
not be  expected  from  so  short  a  course  as  has  been 

1  Year  Book  for  1899,  p.  23.  *  Ibid.,  p.  23. 


1 88  The  Science  of  Penology 


given  at  Elmira.  But  as  there  are  no  vacations, 
and  the  treatment  is  rigorous,  compulsory,  highly 
stimulated  by  the  desire  for  release,  unintermitted, 
and  conducted  by  the  most  capable  and  scientific 
directors,  obviously  less  time  is  necessary  in  the  re- 
formatory than  would  be  required  in  free  life. 

When  the  State  adopts  the  reformative  principle 
of  dealing  with  criminals,  it  manifests  its  will  to 
compensate  a  citizen  whom  its  previous  neglect, 
possibly,  has  permitted  to  become  diseased  and  anti- 
social, by  a  restoration  of  the  elements  of  character 
which  are  wanting,  whatever  may  be  the  expense  or 
the  time  necessary  to  accomplish  this.  If  the  State 
had  done  its  duty  to  the  criminal  in  the  plastic  age 
of  childhood,  or  to  his  ancestors,  his  depravity 
might  have  been  prevented.  Four  or  five  years  of 
a  criminal's  time  cannot  be  spent  more  advanta- 
geously to  himself  or  to  the  public,  than  in  a  full 
preparation  for  honest  self-support. 

The  reformatory,  then,  will  operate  as  an  institu- 
tion for  sorting  and  separating  its  inmates  into 
the  corrigible  and  incorrigible  subdivisions.  All 
those  who  can  be  cured  will  be  cured  before  libera- 
tion. The  chronic  incorrigibles  will  be  found  to 
consist  of  two  classes  :  the  incurably  vicious,  the 
physical,  mental,  and  moral  imbeciles ;  and  those 
whose  organization  is  so  defective  as  to  be  incapa- 
ble of  restoration, — the  half  insane,  the  greatly  de- 
formed, the  infirm,  the  incurably  diseased,  and 
weaklings.  These  classes  are  all  dangerous  when 
at  large,  but  they  should  be  confined  under  entirely 


The  Reformation  of  Criminals        189 


different  conditions.  They  must  be  removed  from 
the  reformatory  as  soon  as  discovered,  that  the 
other  inmates  may  not  be  contaminated.  Their 
presence  retards  the  improvement  of  the  other 
prisoners,  and  in  severe  cases  endangers  their 
health  and  life. 

The  incurably  vicious,  who  are  dangerously  pred- 
atory in  freedom,  should  be  transferred  to  the  pen- 
itentiary of  incorrigibles  under  the  indeterminate 
sentence,  where  they  should  be  compelled  to  work 
for  their  living  and  the  support  of  dependent  rel- 
atives and  the  State.  The  incapable,  however, 
require  hospital  rather  than  prison  treatment.  For 
these,  a  prison  hospital  should  be  provided,  as  is 
done  for  the  criminal  insane,  where  the  discipline 
and  restraints  are  less  rigorous  than  in  the  pen- 
itentiary. The  principle  which  should  govern  their 
confinement  is  the  protection  of  society  from  them, 
with  economy  and  the  least  seventy  possible  with 
security.  There  should  be  neither  purpose  of  pun- 
ishment nor  pamper  of  useless  indulgence.  It  is, 
however,  essential  that  all  the  institutions  to  which 
prisoners  may  be  removed  from  the  reformatory 
shall  be  under  the  same  general  centralized  control 
as  the  reformatory,  to  the  end  that  the  transferred 
prisoners  may  be  prevented  from  profiting  by  in- 
corrigibility  and  intractable  conduct,  and  from 
stimulating,  by  the  example  of  their  transfer,  sim- 
ilar conduct  in  others  reluctantly  remaining  in  the 
reformatory  under  compulsory  training. 

Experience  indicates   that  the   most   successful 


i9°  The  Science  of  Penology 


and  economical  administration  of  such  a  State  in- 
stitution as  a  reformatory  will  be  attained  when  it 
is  planned  for  the  treatment  of  about  two  thousand 
prisoners  as  a  maximum.  The  location  and  con- 
struction of  a  plant  for  this  number  in  a  populous 
State  will  involve  the  cheapest  per  capita  cost  of 
land,  buildings,  and  apparatus ;  of  officials,  attend- 
ants, and  employees,  and  of  general  expense  of 
all  kinds.  Such  a  number  admits  the  purchase  of 
supplies  in  sufficient  quantities  to  secure  the  lowest 
rates.  It  reduces  the  cost  of  transportation  to  a 
minimum.  It  warrants  the  payment  of  salaries  to 
the  superintendent  and  the  chiefs  of  departments 
sufficiently  high  to  attract  the  best  talent  without 
unduly  increasing  the  per  capita  charge.  So  large  a 
population,  only,  will  be  likely  to  supply  a  sufficient 
number  of  all  the  varieties  of  criminality  to  make 
full  classes  in  every  grade  for  instruction  and  train- 
ing. It  is  readily  organized  into  two  regiments  of 
three  or  four  battalions  each,  which  would,  by  com- 
petition, stimulate  one  another  to  excellence.  It 
is  not  too  large  to  be  thoroughly  well  managed  by 
one  man  of  high  ability,  and  none  other  should 
ever  be  placed  in  charge  of  a  reformatory.  The 
superintendent  should  be  allowed  to  select  his 
chiefs  of  staff  and  heads  of  departments,  and  to  fix 
their  salaries ;  for  upon  their  competence  his  suc- 
cess will  depend.  Such  a  great  reformatory  re- 
quires a  thorough  classification  of  inmates,  and  the 
necessary  separate  buildings  for  them. 

If  the  course  of  reformation  be  made  to  average 


The  Reformation  of  Criminals        191 


four  years,  an  institution  designed  for  two  thou- 
sand inmates  would  be  able  to  receive  about  five 
hundred  a  year,  and  would  graduate  to  parole  an 
equal  number  annually.  Large  States  should  so 
locate  their  reformatories  that  they  will  be  conven- 
iently supplied  with  this  number.  Where  smaller 
institutions  are  required,  they  should  be  designed, 
for  the  same  reasons,  but,  of  course,  of  correspond- 
ingly decreased  weight,  for  fifteen  hundred,  one 
thousand,  or  five  hundred  inmates,  who  can  be 
similarly  organized. 

The  Elmira  Reformatory  has  cost  a  little  less 
than  $1,500, OCX).  The  average  number  of  inmates 
is  about  1500.  The  cost  of  the  plant,  therefore, 
has  been  about  $1000  per  inmate.  The  cost  for 
maintenance  in  1899  was  $0.409  per  capita  per 
diem,  or  a  little  less  than  $150  per  annum  ;  adding 
four  per  cent,  interest  on  the  plant,  at  which  rate  a 
State  can  now  borrow  money,  the  annual  cost  of 
the  reformation  of  criminals  there  averages,  in 
round  numbers,  $190  per  annum.  The  average 
cost  of  the  maintenance  of  convicts  in  the  three 
prisons  of  New  York,  in  1899,  less  interest  on  the 
prison  plants,  was  $141.14  per  annum  in  Sing  Sing, 
$141.59  in  Auburn,  and  $186.56  in  Clinton.  The 
average  cost  in  the  penitentiaries  of  Pennsylvania 
in  1899  was»  laDor  and  profits  deducted,  $122.96 
per  annum ;  in  the  Ohio  penitentiary  on  the  same 
basis,  $145.43  per  annum;  in  Illinois  on  the  same 
basis,  $154.49  per  annum  for  1898. 

Reformation,  then,  is  but  slightly  more  expensive 


i92  The  Science  of  Penology 


in  first  cost  than  punishment.  It  is  more  dis- 
tasteful and  dreaded  by  the  criminal  than  simple 
incarceration,  and  therefore  a  more  severe  punish- 
ment than  imprisonment.  It  would  seem  to  be 
clear,  now  that  science  has  positively  proved  these 
things,  that  the  State  is  itself  greatly  culpable  for 
its  delay  in  adopting  the  reformative  principle  in 
dealing  with  criminals,  and  thus  securing  the  great 
relief  from  terror  and  taxation  which  it  affords. 

That  the  female  criminal  is  equally  responsive 
with  the  male  to  reformative  treatment  has  been 
conspicuously  demonstrated  by  the  work  of  the 
late  Mrs.  Ellen  C.  Johnson  in  the  conduct  of  the 
Massachusetts  Reformatory  Prison  for  Women,  in 
Sherborn,  which  was  opened  in  1877.  Although 
there  are  other  successful  male  and  female  reform- 
atories in  this  and  other  countries,  these  two,  at 
Elmira  and  at  Sherborn,  have  not  only  positively 
demonstrated  the  practicability  and  social  utility  of 
therapeutic  reformation,  but  have  fairly  earned,  by 
their  methods  and  success,  the  rank  of  models. 
The  Sherborn  prison  is  managed  upon  the  same 
general  principles  as  that  at  Elmira,  acfapted  in 
methods  to  the  requirements  of  the  female  sex. 
This  subject  is  exhaustively  treated  in  the  report 
prepared  by  the  United  States  International  Prison 
Commission  to  the  Congress  in  Brussels,  in  1900; 
to  which  reference  is  made  for  more  detailed 
information. 


CHAPTER  X. 

DRUNKARDS    AND    PROSTITUTES. 

Nature  of  the  Disease  of  Drunkenness — As  a  Social  Crime — Massachusetts 
Statistics — General  Data — National  Cost  of  Drunkards  as  Criminals — 
Folly  of  Existing  Treatment — Plea  of  Drunkenness  in  Mitigation  of 
Crime — Secondary  Cause  of  Crime — A  Crime  in  Itself — Importance 
of  its  Repression — A  Curable  Disease — Penal  Aspects  of  Drunkenness 
— State  Inebriate  Asylums — Laws  Needed — Right  of  Society  to  Sup- 
press it — Prostitution — As  a  Crime — Evils — Prevalence — The  Action 
Needed  from  the  State — Summary  of  Benefits  to  be  Derived  from  State 
Control  of  these  Crimes. 

pvRUNKENNESS  is  not  only  one  of  the  old- 
•l— '  est  crimes,  but  also  the  most  universally 
prevalent,  malignant,  burdensome,  and  difficult  of 
control  of  all  that  afflict  society.  It  is  sin,  vice, 
and  crime  combined.  As  sin,  it  is  classed  under 
the  moral  law  with  idolatry,  theft,  adultery,  and 
murder,  whose  penalty  is  spiritual  death.1  As  a 
vice,  it  indurates  the  conscience,  perverts  the  men- 
tal faculties,  excites  and  inflames  the  animal  in- 
stincts and  passions,  impairs  and  burns  out  the 
nervous  system,  weakens  and  vitiates  the  physique, 
corrupts  the  blood,  and  generates  all  kinds  of  de- 
pravity in  the  offspring.2 

"  It  is  a  curse  upon  the  community,  for  it  is  the  starting- 
point  of  insanities,  epilepsies,  crime,  and  endless  disease  in 
1  I  Corinthians,  vi.,  10  ;  Galatians  v.,  21. 
8  Cyclopedia  of  Social  Reform,  p.  746. 

193 


194  The  Science  of  Penology 


posterity,  while  as  to  the  individual,  there  is  no  other  dis- 
eased condition  known  which  so  utterly  and  rapidly  destroys 
all  moral  sense;  unless  it  be  epilepsy,  to  which  it  is  naturally 
allied." ' 

These  are  the  scientific  demonstrations  of  the 
medical  profession. 

As  a  social  crime  it  has  called  for  severe  penalties. 
Under  the  Mosaic  law  the  drunkard  was  stoned  to 
death  ;  the  code  of  Draco  punished  drunkenness 
with  death  ;  Chinese  emperors  eleven  centuries  be- 
fore Christ  ordered  all  vines  in  the  kingdom  to  be 
uprooted  ;  as  did  also  Lycurgus  in  Thrace.  From 
the  earliest  times  to  the  present,  governments  Jbave 
struggled  unavailingly,  with  various  penalties  and 
measures,  to  restrict  drunkenness  ;  yet  Lord  Bacon 
said  in  his  time,  "  All  the  crimes  on  earth  do  not  de- 
stroy so  many  of  the  human  race  nor  alienate  so 
much  property  as  drunkenness."  Sir  Matthew 
Hale,  Chief  Justice  of  England,  said,  about  one 
hundred  years  later, 

"  I  have  found  that  if  the  murders  and  manslaughters,  the 
burglaries  and  robberies,  the  riots  and  tumults,  the  adulteries, 
fornications,  rapes,  and  other  outrages  that  have  happened  in 
that  time  [during  the  twenty  years  of  his  administration] 
were  divided  into  five  parts,  four  of  them  have  been  the  issues 
and  products  of  excessive  drinking." 

Two  hundred  years  later,  Dr.  Elisha  Harris  of  New 
York,  in  a  monograph  published  in  1873,  says: 
"  Fully  85  per  cent,  of  all  convicts  (in  the  State) 

1  Dr.  Strahan,  on  "  Marriage,"  p.  119. 


Drunkards  and  Prostitutes  195 


give  evidence  of  having  in  some  larger  degree  been 
prepared  or  enticed  to  do  criminal  acts  because  of 
the  physical  and  distracting  effects  produced  upon 
the  human  organism  by  alcohol."  These  conclu- 
sions have  been  proclaimed  by  statesmen  and 
sociologists  with  increased  urgency  during  the  last 
half  of  the  nineteenth  century  in  our  own  land.  The 
wide  diversity  in  the  laws,  and  in  the  enforcement 
of  them  in  different  localities,  has,  however,  hitherto 
prevented  the  collection  and  collation  of  statistics 
covering  any  long  period  of  time,  or  extent  of 
territory,  as  a  positive  scientific  basis  for  social 
action.  Nor  can  this  be  done  for  many  years.  We 
must  therefore  rely  upon  the  general  consensus  of 
opinion,  governed  and  guided  by  such  absolute 
data  as  are  obtainable. 

In  1880  the  Massachusetts  Bureau  of  Statistics 
of  Labor  made  an  official  examination  in  the  nine 
criminal  courts  of  Suffolk  County,  including  the 
city  of  Boston,  for  one  year,  to  ascertain  the  in- 
fluence of  intemperance  in  the  commission  of  crimes 
not  directly  connected  with  the  sale  or  use  of  liquor. 
It  had  been  discovered  from  the  statistics  collected 
by  the  State  for  the  preceding  twenty  years,  that 
60  per  cent,  of  all  the  sentences  for  crime  in  the 
Commonwealth  were  for  distinctively  liquor  offen- 
ses.1 It  was  found  that  of  the  16,897  total  senten- 
ces in  Suffolk  County  for  the  year  1880,  12,221 
were  for  drunkenness,  and  68  for  illegal  liquor  keep- 
ing and  selling.  Thus  only  4608,  or  27  -f-  per  cent., 

1  Practical  Sociology,  Carroll  D.  Wright,  p.  355. 


196  The  Science  of  Penology 


of  all  the  sentences  were  for  other  crimes.  It  ap- 
peared from  the  careful  examination  of  these  cases  as 
they  were  tried,  that  2097  of  the  offenders  were  in 
liquor  at  the  time  of  the  commisson  of  the  offenses  ; 
1918  were  in  liquor  at  the  time  of  the  formation  of 
the  intent;  the  intemperate  habits  of  1804  were 
such  as  to  induce  a  moral  condition  favorable  to 
crime  ;  821  were  led  to  criminal  action  through  the 
contagion  of  intemperance.  Those  sentenced  for 
assault  and  battery  (1498)  and  larceny  (1115) 
constituted  56  -\-  per  cent,  of  the  number  investi- 
gated ;  of  whom  1275,  or  48 -{-percent,  were  in  liquor 
when  committing  the  crime,  or  2  7-}- per  cent,  of  the 
total  examined.  The  2097  in  liquor  at  the  time 
of  committing  the  offense,  equivalent  to  12  -f  per 
cent,  of  all  the  offenders,  added  to  the  12,289 
sentenced  for  distinctive  liquor  crimes,  makes  the 
total  crimes  traced  directly  to  liquor  14,386,  or  85  + 
per  cent,  of  all  the  crimes.  It  may  be  reason- 
ably assumed  that  investigation  along  other  lines 
would  have  traced  a  considerable  proportion  of 
the  remaining  14  +  per  cent,  to  the  effects  of 
drunkenness. 

By  direction  of  the  Legislature  the  same  Bureau 
made  a  somewhat  similar  investigation  of  the  con- 
victions in  the  entire  State  of  Massachusetts  during 
1895.  The  total  number  of  sentences  was  26,672, 
of  which  66  per  cent,  were  for  drunkenness,  and  2  -f- 
per  cent,  for  drunkenness  in  connection  with  other 
crimes.  In  8440  cases  in  which  drunkenness  did 
not  form  a  part  of  the  offense,  4582  of  the  of- 


Drunkards  and  Prostitutes  197 


fenders  were  in  liquor  at  the  time  of  forming  the 
intent  to  commit  the  crime.  Thus  23,084,  or  86.5 
per  cent,  of  the  total,  were  directly  traced  to  in- 
temperance and  the  liquor  traffic  ;  a  somewhat  larger 
percentage  than  that  found  in  Suffolk  County  in 
1880. 

The  State  of  Massachusetts  and  its  county  of 
Suffolk  furnish  the  best  example  of  wise  laws 
faithfully  enforced  against  drunkenness  to  be  found 
in  any  country  in  the  world.  There  is  no  reason  to 
suppose  that  there  is  any  more  intemperance  in 
that  first-settled  Puritan  commonwealth,  which  has 
long  been  the  mother  of  great  men  and  the  source 
of  great  principles  and  moral  progress  in  America, 
than  in  other  States  of  our  country.  We  may 
fairly  assume  that  the  relation  of  drunkenness  to 
crime  which  has  been  shown  to  exist  in  Massachu- 
setts is  maintained  throughout  the  whole  country. 
There  was  one  arrest  for  drunkenness  for  every  23 
of  the  population  of  Boston  in  that  city  in  1899. 
If  similar  laws  had  been  similarly  executed  in  all 
the  159  cities  having  over  25,000  inhabitants  in  the 
United  States,  there  should  have  been,  at  this  same 
ratio,  856,288  arrests  for  drunkenness  in  them  dur- 
ing the  year.  Adding  ten  per  cent,  for  the  rest  of 
the  country,  which  is  largely  rural,  there  would 
have  been  941,916  arrests  for  that  crime  alone  in  the 
United  States  in  1899.* 

The  agreement  of  these  figures  with  the  esti- 
mates made  by  qualified  experts  in  other  times  and 

1  See  Appendix  A  for  the  actual  conditions. 


The  Science  of  Penology 


places,  as  well  as  with  popular  observation  and 
opinion,  confirms  this  deduction.  These  figures, 
however,  do  not  include  the  indirect  or  secondary 
results  of  intemperance,  the  inherited  criminality. 
Many  have  become  criminals  because  of  defect  or 
disease  derived  from  drunken  ancestry.  Marro 
rated  over  40  per  cent,  of  criminals  as  descended 
from  drunken  parents.1  Drunkenness  was  clearly 
traced  in  the  ancestry  of  36.3  per  cent,  of  the 
9344  convicts  who  have  been  examined  at  the 
Elmira  Reformatory.2  Assuming  that  only  25  per 
cent,  of  the  3588  convicts  in  Massachusetts  whose 
crimes  were  not  directly  traced  to  intemperance 
owed  their  criminality  of  character  through  heredity 
or  youthful  environment  to  drunken  ancestry,  it 
follows  that  68  per  cent,  of  all  criminals  sentenced 
for  other  offenses  were  the  direct  and  indirect  pro- 
duct of  drunkenness;  and  formed  90  per  cent,  of 
the  aggregate  of  criminality  in  the  State.  As 
drunkenness  is  largely  ignored  as  a  crime  in  other 
States  and  cities,  it  is  probable  that  not  more  than 
70  per  cent,  of  the  $6.20  per  capita  of  population 
cost  of  criminality  in  the  United  States  should  be, 
at  present,  charged  to  drunkenness.  Even  this 
amounts  to  the  immense  sum  of  $420,000,0x30  per 
annum.  Drunkenness  is  then  the  crime  of  first 
magnitude  in  its  economic  results,  as  well  as  in  all 
other  respects. 

The  apparent  failure  of  the  well  enforced  laws 

1  The  Criminal,  Drahms,  p.  134. 
8  Year  Book  for  igoo,  p.  32. 


Drunkards  and  Prostitutes  199 


of  Massachusetts  to  suppress  the  crime  of  drunken- 
ness must  be  attributed  to  the  inefficacy  of  their 
penalties.  They  are  framed  upon  the  obsolete  plan 
of  punishment  instead  of  upon  the  scientific  prin- 
ciples of  reformation.  Sin,  vice,  and  crime  cannot 
be  constrained  by  force.  The  evidence  of  all  the 
ages  has  proved  this.  They  must  be  conquered  by 
curing  their  proximate  cause,  the  disease  of  character 
which  induces  them.  Fines,  and  short  terms  of 
confinement  in  comfortable  quarters,  with  good 
food,  under  a  doctor's  care,  merely  afford  opportu- 
nity to  recover  from  the  exhaustion  of  debauch,  and 
to  prepare  for  a  renewal.  They  are  no  punishment 
to  one  who  has  become  insensible  to  the  misery 
which  his  drunkenness  has  brought  upon  his  rela- 
tives and  friends.  Public  care  of  this  kind  is  just 
what  the  drunkard  desires,  and  instances  are  not 
infrequent  where  the  same  drunkard  has  been  ar- 
rested one  hundred  times  or  more. 

Drunkenness  is  sometimes  speciously  pleaded  by 
criminals  in  mitigation  of  other  crimes,  on  the  os- 
tensible ground  that  it  is  a  species  of  temporary 
insanity  which  implies  irresponsibility.  It  should 
on  the  contrary  be  held  by  the  court  to  aggravate 
the  offense,  inasmuch  as  the  condition  of  insen- 
sibility to  conscientious  control  has  been  often 
intentionally  assumed  in  order  to  facilitate  the  per- 
petration of  the  crime,  and  it  is  well  known  to  be  a 
condition  provoking  and  stimulating  to  crime.  If 
not  a  component  of  the  intention  it  was  doubtless 
the  inciting  cause  or  favoring  condition.  In  either 


200  The  Science  of  Penology 


case  it  is  an  element  of  the  other  crime  charged,  and 
so  adds  to  its  gravity.  Being,  besides,  a  crime  in 
itself,  it  doubles  rather  than  diminishes  the  criminal- 
ity of  one  who  commits  another  crime  under  its 
sway.  The  penalty  for  a  crime  committed  under 
the  influence  of  liquor  should  therefore  be  more 
severe  than  when  it  is  committed  with  sober  senses. 
Drunkenness  is  both  a  contributory  cause  of  crime 
and  an  indication  of  criminal  depravity  of  character. 

A  very  large  proportion  of  the  murders  and  atro- 
cious crimes  which  shock  society  are  perpetrated 
under  the  excitement  of  intoxication.  Many  of  the 
so-called  accidents  with  loss  of  life,  much  of  the 
destruction  of  property  by  fires,  explosions  of 
boilers,  negligence  in  handling  machinery  and  in 
other  duties,  are  to  be  charged  against  drunkenness. 
At  least  half  the  burden  of  insanity,  idiocy,  epilepsy, 
and  inability  for  self-support  is  to  be  traced  to  in- 
temperance. It  is  probable  that  more  than  half  of 
all  pauperism,  and  most  of  the  wretchedness  and 
sufferings  of  poverty  are  due  to  drunkenness 
directly  or  remotely.1 

Judge  Edgar  M.  Warner,  in  his  address  entitled 
"  The  Sober  Man's  Burden,"  delivered  before  the 
National  Prison  Association  Congress  in  1899,* 
says  : 

"  I  hold  that  no  man  has  a  right,  moral  or  legal,  to  get 
drunk  ;  whether  he  lives  on  the  avenue  and  squanders  his  own 
or  his  relatives'  money  or  whether  he  lives  in  the  alley  and 

1  Prisoners  and  Paupers,  p.  147  ;   Practical  Sociology,  Wright,  p.  402. 
*  Report  of  National  Prison  Association  for  1899,  p.  45. 


Drunkards  and  Prostitutes  201 


squanders  his  own  or  his  relatives'  money,  he  is  a  miserable 
criminal,  and  also  what  is  sometimes  worse,  an  unmitigated 
nuisance,  and  should  be  suppressed  by  law.  .  .  .  The  State 
has  no  right  to  permit  drunkards  to  exhibit  themselves  in 
public,  or  go  at  large  in  any  place  where  people  travel  or  con- 
gregate. .  .  .  Is  it  not  strange  administration  of  criminal 
law  to  prosecute  the  same  man  two  hundred  times,  or  one 
hundred,  or  even  twenty-five  times  for  the  same  offense? 
.  .  To  confine  a  human  being  in  a  steel  cage,  6x8,  for 
thirty  days,  without  exercise  or  occupation,  is  a  crime  against 
the  human  being.  To  permit  a  human  being  to  live  in  a  steel 
cage,  6x8,  with  good  food  and  a  fair  allowance  of  tobacco, 
eating  the  bread  of  idleness,  is  a  crime  against  the  State. 
In  short  he  must  be  made  to  know  and  feel  that  a 
drunkard  is  not  a  weakling  to  be  coddled,  but  is  an  intolerable 
criminal,  an  unmitigated  nuisance  and  beast,  to  be  abated  at 
any  cost,  like  the  cholera,  yellow  fever,  or  smallpox." 

While  the  tentative,  desultory  attempts  which 
society  has  made  in  the  past  for  the  restriction  and 
cure  of  drunkenness  have  failed  to  secure  general 
social  relief,  they  have  at  last  so  fully  disclosed 
its  pathology  as  to  make  it  possible  to  formulate 
some  general  principles  of  treatment.  Inebriety, 
or  drunkenness,  is  a  disease  of  both  the  physical  and 
moral  character,  which  yields  to  proper  treatment 
as  readily  as  do  other  similar  diseases.  Fines  and 
temporary  imprisonment  have  as  little  effect  upon 
it  as  they  have  on  larceny  or  insanity.  Its  cure 
depends,  like  the  cure  of  all  criminality,  upon  re- 
formation of  the  character,  which  requires  time, 
proportioned  to  the  peculiarities  of  the  case ;  time 
to  renew  wasted  tissue,  to  restore  physical  health, 
to  readjust  abnormal  appetite  and  counterbalance 


202  The  Science  of  Penology 


unnatural  craving  with  healthy  self-control,  rational 
judgment,  normal  resistance,  and  firm  will. 

The  report  of  the  Advisory  Committee  on  "  The 
Penal  Aspects  of  Drunkenness,"  appointed  by  the 
Mayor  of  Boston,  of  which  Mr.  Joseph  G.  Thorp, 
President  of  the  Massachusetts  Prison  Association, 
was  chairman,  published  by  the  city  of  Boston  as 
"  Document  158 — 1899,"  summarizes  the  latest  con- 
clusions of  science  upon  this  problem  : 

"  The  committee  has  made  a  careful  study  of  existing  con- 
ditions. They  have  examined  all  available  official  statistics 
and  have  supplemented  these  by  statistical  investigations  of 
their  own  from  official  sources.  They  acknowledge  with 
hearty  thanks  the  generous  co-operation  of  officials  responsi- 
ble for  the  administration  of  existing  laws,  judges,  proba- 
tion officers,  police  officials,  and  heads  of  penal  institutions. 
They  are  indebted  to  the  overseers  of  the  poor  and  to  repre- 
sentatives of  the  leading  charitable  organizations  of  Boston 
for  valuable  information  and  suggestions,  and  they  are  under 
obligations  to  leading  medical  authorities  for  much  valuable 
expert  advice.  The  committee  has  sought  all  available  as- 
sistance from  the  experience  of  other  States  and  countries. 
In  a  word,  it  has  endeavored  to  take  advantage  of  all  access- 
ible sources  of  information  and  suggestion.  .  .  . 

"  It  will  be  observed  that  the  classes  of  offenders  here  con- 
sidered are  roughly  divided  into  the  following  groups: 

"  First  of  all,  the  large  class  of  accidental  and  of  first  of- 
fenders, who,  under  the  present  practice  of  the  courts,  are 
commonly  discharged  and,  with  occasional  exceptions,  ob- 
viously require  only  the  exemplary  warning  furnished  by 
arrest,  a  night  in  jail,  and  arraignment  in  court.  For  the  ex- 
ceptional cases  referred  to,  probation  or  probationary  fine 
may  serve  still  further  to  reinforce  the  warning.  This  whole 
group,  it  will  be  remembered,  constitutes  more  than  fifty  per 


Drunkards  and  Prostitutes  203 


cent,  of  the  total  number  of  arrests  for  drunkenness  in  Suffolk  » 
County. 

"  Second,  the  smaller  class  of  occasional  offenders,  presum- 
ably on  the  road  to  habitual  inebriety,  and  calling  for  the 
most  intelligent  sympathy  and  treatment.  It  is  here  that  the 
restraint,  encouragement,  and  personal  influence  of  probation, 
and,  in  rarer  cases,  of  probationary  fines,  are  most  needed  and 
most  effective. 

"  Third,  the  still  smaller,  but  more  distinctly  pathological, 
group  of  habitual  and  of  periodical  drunkards.  Here  the  re- 
straining influence  of  probation  is  obviously  less  likely  to  pro- 
duce permanent  results  ;  and  it  is  this  class  which  makes  the 
strongest  appeal  for  the  more  systematic  and  scientific  rescue 
work  of  asylum  treatment.  Unhappily,  at  present,  the  fre- 
quent application  of  fines,  and  consequent  short-term  im- 
prisonment to  persons  in  this  critical  condition,  only  hastens 
the  work  of  demoralization. 

"  Fourth,  the  smallest  and  most  pathetic  residual  group  of 
confirmed  inebriates.  For  the  small  minority  of  young 
offenders  belonging  to  this  group  every  consideration  of 
humanity  urges  the  exhaustion  of  every  deterrent  influence 
and  the  most  thorough  asylum  treatment  before  turning  to  the 
last  resort  of  prolonged  imprisonment.  For  the  great  majority 
of  this  group,  including  the  rounders  and  incorrigibles  who 
infest  our  public  institutions,  permanent  detention  under  an 
indeterminate  sentence,  and  under  conditions  which  protect 
them  and  society  from  further  degradation,  is  the  only  logical 
treatment. 

"  However  reluctant  public  opinion  may  be  to  sanction  such 
heroic  treatment,  it  must  not  be  forgotten  that  there  is  in 
every  great  community  a  residual  group  of  incurables  and  in- 
corrigibles calling  for  special  and  systematic  treatment,  in  their 
own  interest  no  less  than  in  the  interest  of  society.  Individual 
welfare  and  social  welfare,  individual  justice  and  social  justice, 
unite  in  demanding  that  the  unfortunate  who  has  lost  the 
power  of  self-control  shall  be  protected  against  his  own  de- 
grading weakness,  and  that  society  shall  be  relieved  in  part  of 


204  The  Science  of  Penology 


'the  danger  and  the  contagion  of  his  example,  and  the  heredi- 
tary transmission  of  weakness  to  pauperized  and  degenerate 
children.  Such  ends  a  monastic  regime  of  wholesome  discipline, 
labor,  recreation,  and  improvement  can  alone  accomplish. 

"  Finally,  it  must  be  fully  admitted  that  such  a  comparatively 
simple  classification  cannot  pretend  to  be  exhaustive.  It  is 
one  of  the  complexities  of  the  situation,  calling  for  the  largest 
exercise  of  wisdom  by  the  courts,  that  in  all  these  groups 
cases  of  drunkenness  are  not  infrequently  complicated  by 
criminal  conduct,  so  that  they  cannot  be  disposed  of  as 
simple  cases  of  intoxication.  Doubtless  such  complications 
in  some  measure  account  for  seeming  anomalies  in  the  punish- 
ment of  persons  nominally  under  arrest  for  drunkenness. 
Moreover,  in  practice,  these  groups  overlap,  and  not  a  few 
cases  are  so  complicated  and  obscure  as  to  defy  accurate 
diagnosis  and  classification."  ' 

Special  asylums  are  needed  in  every  State  for  the 
treatment,  and  laws  for  the  confinement,  of  dipso- 
maniacs, or  the  subjects  of  alcoholism,  which  the 
\  medical  profession  regards  as  a  "  morbid  condition 
resulting  from  the  inordinate  and  persistent  use  of 
alcoholic  beverages"  to  which  they  can  be  committed 
under  an  indeterminate  sentence  until  cured.  This 
is  a  law  of  penological  science.  The  relief  of  over- 
crowded station-houses  and  jails  would  render  the 
construction  of  such  asylums  economically  feasible. 
They  could  be  made  self-supporting  from  the  labor 
of  the  inmates  and  the  board  of  those  able  to  pay. 
These  asylums  should  be  located  near  the  centres 
of  population,  and  have  connected  with  them  suf- 
ficient land  to  furnish  most  of  the  subsistence  of  the 

1  "  The  Penal  Aspects  of  Drunkenness,"  Professor  Edward  Cummings, 
The  Charities  Review,  January,  1900. 


Drunkards  and  Prostitutes  205 


inmates,  and  to  provide  them  with  outdoor  labor. 
Other  industrial  occupations  should  be  conducted 
to  enable  their  inmates  to  maintain  dependent  rela- 
tives while  undergoing  treatment.  License  fees  for 
liquor-selling  should  be  devoted  primarily  to  the 
maintenance  of  such  asylums.  The  superintendents 
must  be  skilled  medical  specialists  devoted  to  the 
study  and  cure  of  this  terrible  disease.  The  laws 
should  require  magistrates  to  fine  every  person  ar- 
rested the  first  time  for  drunkenness,  according  to 
his  ability  to  pay,  measured  by  his  weekly  earnings 
or  pecuniary  resources,  so  that  rich  profligates  will 
suffer  an  equal  penalty  with  the  poor,  and  repri- 
mand him  and  place  him  in  charge  of  a  probation 
officer,  to  prevent  repetition,  and  to  work  out  his 
fine  if  it  is  not  paid.  A  second  offense  should  en- 
tail a  warning  and  an  increased  fine,  to  be  worked 
out,  if  necessary,  under  the  probation  officer  or 
upon  the  public  streets  or  works.  Upon  the  third 
arrest,  the  drunkard  should  be  sent  to  the  inebriate 
asylum  with  all  habitual  drunkards,  under  an  inde- 
terminate sentence,  to  remain  until  cured.  Dis- 
charge should  be  ordered  by  the  superintendent, 
and  should  be  upon  a  year's  parole  with  monthly 
reports.  Those  who  are  able  should  be  made  to 
pay  the  cost  of  their  cure. 

The  right  and  obligation  of  society  to  deal  with 
drunkenness  as  a  crime  is  incontestable.  The  same 
right  and  obligation  exists  concerning  the  treatment 
of  the  analogous  female  crime  and  vice  of  prosti- 
tution. Although  the  arrests  for  this  crime  are 


206  The  Science  of  Penology 


for  various  reasons  greatly  fewer  than  those  for 
drunkenness  even  in  Suffolk  County,  Massachu- 
setts, the  prevalence  of  the  crime  in  the  denser 
communities  of  modern  civilization  is  probably 
next  in  magnitude  and  in  social  damage  to  that  of 
drunkenness  ;  and  the  demands  of  the  public  for 
protection  and  relief  from  it  are  equally  urgent. 

Prostitution  is  a  crime  against  the  family,  the 
very  basis  and  corner-stone  of  society.  The  public 
prosperity  depends  upon  constant  growth  in  num- 
bers ;  their  good  health,  virility,  productive  ener- 
gies, and  security  in  the  enjoyment  of  life.  The 
supreme  law  of  social  self-preservation,  indeed, 
requires  that  the  regular  natural  forces  of  repro- 
duction should  always  exceed  the  forces  of  deterio- 
ration, exhaustion,  and  death.  That  State  which  by 
ignorance  or  neglect  permits  social  exhaustion  to 
outrun  reproduction,  waste  to  devour  renewal,  is 
doomed  inevitably  to  decadence.  Next  in  power 
to  the  instinct  of  self-preservation  nature  constituted 
sexual  desire,  the  instinct  of  reproduction.  The 
perpetuation  of  the  human  race,  the  prosperity  and 
happiness  of  society,  depend  chiefly  upon  the  pro- 
tection of  marriage,  and  of  the  family,  which  is  the 
social  unit. 

The  history  of  the  decline  and  extinction  of  the 
great  civilizations  of  antiquity,  the  Phoenician,  As- 
syrian, Persian,  Egyptian,  Grecian,  and  Roman, 
affords  impressive  examples  of  the  natural  result  of 
general  prostitution.  Their  dying  legal  struggle 
for  self-preservation  was  compulsory  marriage. 


Drunkards  and  Prostitutes  207 


Prostitution  permits  the  sexual  instinct  to  be  ex- 
pended in  impotent  and  fruitless  indulgence,  and 
thus  defeats  its  natural  object,  which  is  offspring. 
It  also  causes  and  disseminates  incurable  venereal 
diseases,  which  may  be  communicated  to  pure  wives 
by  licentious  husbands,  and  thus  transmitted  to  inno- 
cent children.  These  diseases,  moreover,  are  liable 
to  be  imparted  by  contagion,  without  sexual  inter- 
course. Disease,  deformity,  criminality,  weakness, 
and  impotency  are  the  inevitable  inheritance  of  the 
offspring  of  male  and  female  prostitutes.  The 
natural  penal  reaction  of  this  crime  is  more  debas- 
ing and  terrible  in  its  conditions,  more  certain  and 
quicker  to  exterminate  its  perpetrators  than  any 
other  vicious  practice.  The  offspring  of  prostitutes 
are  only  one  eighth  the  number  of  those  of  married 
women.  "  One  hundred  prostitutes  may  be  ex- 
pected in  their  lives  to  give  birth  to  sixty  infants, 
one  hundred  married  women  to  four  hundred  and 
eighty."1  The  average  life  of  the  prostitute  is 
computed  to  be  reduced  to  five  years  of  prostitu- 
tion. *  Prostitutes  tempt  and  corrupt  boys  at  early 
ages.  If  they  do  not  impart  physical  disease  they 
stimulate  inordinate  indulgence  of  the  sexual 
passion,  which  "  grows  with  that  it  feeds  upon  " 
until  it  becomes  a  fruitful  cause  of  rape,  seduction, 
sodomy,  self-abuse,  adultery,  and  many  other  crimi- 
nal vices.  Excessive  sexual  desire  and  sensuality 

1  Dictionaire  Sciences  Medicale. 

8  Cyclopedia    Social   Reform,    p.    1129  ;     History  of  Prostitution^    Dr. 
Sanger,  p.  485. 


2o8  The  Science  of  Penology 


are  almost  universal  characteristics  of  criminals, 
who  are  frightfully  addicted  to  solitary  vices  which 
often  reduce  them  to  semi-idocy  during  imprison- 
ment. The  maintaining  of  the  business  of  prosti- 
tution creates  a  constant  demand  for  fresh  young 
girls,  which  its  agents  are  everywhere  exercising 
fiendish  ingenuity  to  supply.  It  is  estimated  that 
every  prostitute  woman  requires  five  prostitute 
men  for  her  support.  Briefly,  prostitution  prevents 
marriage,  invites  violation  of  marriage  vows,  im- 
pairs the  sanctity  and  fertility  of  marriage,  corrupts 
the  blood,  causes  impotency  and  degeneration, 
disseminates  horrible  diseases  among  the  pure  and 
innocent,  restricts  and  depraves  maternity,  reduces 
the  birth  rate,  debases  and  ruins  boys  and  girls, 
and  attacks  the  vitals  of  society  from  all  sides. 

Mulhall  gives  for  1898  the  number  of  prostitutes 
in  London  as  31,800,  or  8.3  per  1000  inhabitants; 
in  Paris,  12.2  per  1000;  Lyons,  14.5;  Marseilles, 
11.2;  Bordeaux,  12.5,  and  Berlin,  24.8  per  1000 
inhabitants.  The  number  in  New  York  was  es- 
timated to  be  40,000  in  1896,  and  in  1899  was  18.6 
to  the  1000  inhabitants.1  M.  Lecour,  head  of  the 
Police  des  Mceurs  of  Paris,  says :  "  Sanitary  sta- 
tistics prove  that  prostitution  is  increasing,  and 
that  it  is  becoming  more  dangerous  to  the  public 
health." 2  The  birth  rate  in  France  has  declined 
from  26.3  in  1865  to  21.8  in  1890,  the  death  rate 
then  being  22.6  per  1000.  In  1897  the  birth  rate 

1  Cyclopedia  of  Social  Reform,   p.    1127;    History  of  Prostitution,    Dr. 
Sanger,  p.  678.  2  Cyclopedia  of  Social  Reform,  p.  1131. 


Drunkards  and  Prostitutes  209 


was  22.4,  the  d£ath  rate,  19.9  per  1000,  but  for 
the  last  twenty  years  the  diminution  in  the  number 
of  births  has  been  almost  constant,  while  the  num- 
ber of  divorces  has  increased  rapidly,  from  5752  in 
1891  to  7460  in  1 897.*  Social  waste  is  there  out- 
running reproduction.  It  is  the  opinion  of  medical 
practitioners  qualified  to  judge  that  prostitution 
and  syphilitic  diseases  are  increasing  in  America. * 

It  is  manifest  from  this  statement  of  the  facts 
that  the  suppression  of  prostitution  is  also  a  su- 
preme duty  of  government.  It  is  a  plague  more 
dangerous  and  serious  than  the  cholera  or  yellow 
fever.  Experience  has  demonstrated,  both  abroad 
and  at  home,  that  it  cannot  be  suppressed  or  cor- 
rected by  license  or  legal  regulation.  The  law, 
then,  must  brand  prostitution  as  a  crime,  and  lay 
hands  on  and  arrest  all  prostitutes.  Prostitutes 
must  be  treated  as  criminals,  affected  with  the  dis- 
ease of  moral  depravity,  like  drunkards.  This  will 
multiply  arrests  almost  in  the  ratio  of  the  arrests 
for  drunkenness  in  Massachusetts,  and  make  the 
disposition  of  those  arrested  a  very  important  ques- 
tion. Penological  science  makes  the  same  answer 
to  this  question  as  it  does  concerning  drunkards 
and  all  criminals :  seclusion  for  the  purpose  of 
cure ;  and  permanent  confinement  of  the  incurable 
under  the  indeterminate  sentence.  Special  hospi- 
tals, or  reformatories,  are  required  under  the  care 
of  skilled  specialists,  adapted  to  the  necessities  of 

1  Statesmen's  Year  Book,  1899. 

8  History  of  Prostitution,  Dr.  Sanger,  p.  690. 


210  The  Science  of  Penology 

maternity  and  infants,  as  well  as*of  childless  pros- 
titutes, from  which  the  reformed  may  be  returned 
to  social  life  and  the  incorrigible  graduated  into 
penitentiaries.  Freedom  under  a  probation  officer 
for  those  first  arrested  is  inapplicable  to  prosti- 
tutes, because  prostitution  indicates  confirmed  and 
chronic  moral  depravity,  requiring  long-continued 
treatment,  like  habitual  inebriety.  The  peculiar- 
ities of  feminine  character,  however,  increase  the 
prospect  of  reformation  far  beyond  the  ratio  of 
male  delinquents,  and  encourage  philanthropic 
effort  for  their  own  sake,  as  well  as  for  social 
protection. 

The  record  of  failure  in  the  social  contest  with 
these  two  cardinal  crimes  from  the  beginning  of 
history  ;  the  constant  natural  tendency  of  humanity 
to  give  license  to  appetite  and  desire ;  the  inef- 
ficacy  of  strenuous  reform ;  the  powerful  combina- 
tion of  the  great  wealth  acquired  by  pandering  to 
them  which  exists  for  their  protection  and  propa- 
gation ;  the  imperative  duty  of  the  social  organiza- 
tion to  guard  and  promote  the  welfare  and  morality 
of  its  individual  components,  all  reinforce  the  de- 
mand of  science  that  the  State  shall  everywhere 
stigmatize  these  vices  as  heinous  crimes  in  them- 
selves ;  that  the  State  shall  deal  with  those  who 
perpetrate  them  just  as  intelligent  Penology  re- 
quires that  all  the  other  criminals  shall  be  dealt 
with,  for  their  own  reformation,  and  the  protection 
of  the  public.  The  State  is  the  only  power  ca- 
pable of  conquering  in  this  contest.  The  universal 


Drunkards  and  Prostitutes  211 


branding  of  drunkenness  and  prostitution  as  crimes 
under  the  ban  of  the  law  will,  of  itself,  act  upon 
the  mass  of  the  people  as  a  great  deterrence. 
When  the  supreme  power  of  the  State  is  thus  ex- 
erted to  repress  and  reform,  society  will  have 
secured  its  best  safeguard  from  them. 


CHAPTER  XI. 

THE    CRIMINAL    INSANE    AND    INSANE   CONVICTS. 

Effect  of  the  Discoveries  of  Medical  Science  on  Criminal  Culpability — 
Varieties  of  Insanity — Plea  of  Insanity  in  Criminal  Trials — Irresponsi- 
bility of  the  Insane — The  Criminal  Insane — Their  Crimes — Professional 
Scientific  Alienists — Doctrine  of  Irresponsibility  more  Effective 
Protection  than  Dogma  of  Punishment — Idiots — Epileptics — First 
Recognition  of  Doctrine  of  Irresponsibility — Second  Step — German 
Code — French  Penal  Code,  and  American  Practice — Resume  of  Legal 
Precedents — Present  Legal  Status  not  Good  Law — Expert  Should 
Appear  for  the  State — Question  of  Insanity  One  of  Fact,  Requiring 
Judicial  Decision  by  an  Expert — Expert  Professional  Alienists  Needed 
— Insane  Criminals  to  be  Removed  from  Prisons — Feigned  Insanity — 
State  Commission  of  Alienists — State  Hospitals  for  Insane  Criminals 
— Separate  from  Prisons — And  from  General  Hospitals  for  the  Insane — 
Where  now  Established — Expiration  of  Sentence  of  the  Insane — When 
Cured  Previous  to  Expiration  of  Sentence — Disposition  of  the  Insane 
under  Sentence  of  Death — Of  All  Others  when  Cured — Disposition  of 
Cured  Life-term  Prisoners. 

MEDICAL  science  has  revolutionized  the  social 
conception  of  the  nature  of  insanity  and  its 
treatment  within  the  last  twenty-five  years.  It  is 
no  longer  considered,  in  civilized  countries,  a  dia- 
bolical possession,  but  is  known  to  be  a  cerebral 
disease.  Instead  of  punishments,  dungeons,  chains, 
straight-jackets,  and  all  manner  of  physical  re- 
straints, have  been  substituted  medical  therapeu- 
tics, tender  care,  and  the  greatest  comfort  and 
freedom  consistent  with  the  safety  of  the  patient 


Criminal  Insane  and  Insane  Convicts  213 


and  of  the  public.  This  change  has  greatly 
affected  criminal  jurisprudence.  The  question  of 
personal  responsibility  for  criminal  action  has  as- 
sumed new  and  practicably  soluble  phases.  The 
laws  absolve  insane  and  idiotic  persons  from  guilt 
for  crime.  But  as  all  crime  has  come  to  be  held 
an  aberration  from  normal  healthy  action,  the  diffi- 
culties of  determining  the  just  division  line  between 
an  abnormality  of  action  which  is  culpable,  and  one 
which  has  no  moral  responsibility,  are  multiplied  in 
various  directions.  It  is  now  generally  admitted 
that  not  only  the  crimes  committed  by  the  mani- 
festly insane,  but  also  many  of  those  which  have 
heretofore  been  severely  punished  under  the  laws, 
were  acts  caused  by  mental  and  moral  disease,  in- 
stead of  wilful  depravity,  which  rendered  the  per- 
petrator incapable  of  self-control.  This  is  especially 
remarkable  in  crimes  of  violence,  homicides,  assaults 
with  intent  to  kill,  and  other  shocking  atrocities, 
perpetrated  by  persons  not  previously  recognized 
as  insane.  Twenty-three  per  cent,  of  all  the  life 
convicts  in  the  prisons  of  New  York  are  now  in  the 
Matteawan  Hospital  for  insane  criminals. 1 

The  well  defined  species  of  insanity  named 
paranoia  is  diagnosed  by  prevalent  delusions  on 
particular  subjects,  while  the  general  functions  are 
rational.  These  delusions  are  frequently  of  perse- 
cutions, attempts  to  poison  or  otherwise  to  injure 
the  patient,  hallucinations  of  voices  in  the  air  urging 
to  irrational  acts,  which  irresistibly  impel  to  sudden 

1  Dr.  W.  E.  Allison,  Report  of  National  Prison  Association,  1898,  p.  333. 


214  The  Science  of  Penology 


violent  crimes  in  imaginary  self-defense.  Other 
criminal  phases  of  insanity  have  been  specialized 
as  homicidal  and  suicidal  mania,  pyromania,  klep- 
tomania, dipsomania,  sexual  mania,  in  which  the 
patient  is  uncontrollably  insane  only  upon  one  sub- 
ject. There  is  also  an  insane  neurosis,  and  an  epi- 
leptic neurosis,  both  conducing  to  uncontrollable 
convulsive  action,  mental,  moral,  and  physical. 
Where  the  convulsion  results  in  a  crime  the  per- 
petrator ought  not  to  be  held  any  more  responsible 
than  when  it  results  in  an  injury  to  himself.  Moral 
imbecility  is  now  known  to  be  as  distinct  and  preva- 
lent a  disease  as  mental  imbecility  ;  and  graded, 
like  the  mental,  from  idiocy  upward.  It  is  not  pos- 
sible for  judge  or  jury  to  decide  at  what  point  in 
the  scale  responsibility  begins,  without  the  evidence 
of  an  expert  alienist.  It  is  probable  that  Professor 
Ferri's  category  of  criminal  madmen  is  actually  a 
much  larger  proportion  of  the  criminal  class  under 
the  latest  diagnosis  of  science  than  the  five  to  ten 
per  cent,  assigned  to  it  by  him.  A  portion  of  the 
"  instinctive  "  and  "  habitual  "  criminal  category 
should  be  added  to  it. 

These  discoveries  have  caused  the  plea  of  in- 
sanity in  the  defense  of  criminals  to  be  more  com- 
monly urged,  and  more  readily  admitted  by  the 
courts  than  formerly.  This  plea  is,  however,  much 
abused  in  the  escape  of  the  guilty,  not  only  from 
conviction  but  also  from  confinement  in  the  hu- 
manely managed  asylums,  to  which  they  have  been 
committed  as  insane  patients,  and  where  they  have 


Criminal  Insane  and  Insane  Convicts  215 


been  allowed  the  privileges  and  freedom  of  modern 
asylum  treatment.  Such  abuses  have  so  discredited 
the  plea  in  the  popular  estimation,  that  it  is  quite 
generally  regarded  with  suspicion  when  offered. 
It  is  popularly  considered  the  last  resort  of  a  baffled 
and  desperate  defense. 

"  This  mistrust  will  become  less  prevalent  as  the  knowledge 
of  the  medical  profession  regarding  the  various  forms  of 
mental  disease  grows  more  exact  and  fixed,  to  the  exclusion 
of  those  ephemeral  and  transitory  manias,  always  of  doubtful 
existence  and  now  happily  becoming,  like  other  exploded 
notions,  simply  historical  incidents  of  the  past."  l 

As  all  criminality  of  character  has  been  scien- 
tifically demonstrated  to  be  an  abnormality  or 
disease,  one  phase  of  which  is  cerebral  disease  or 
insanity,  there  should  be  on  the  contrary  a  pre- 
sumption of  insanity,  like  the  presumption  of 
innocence,  in  favor  of  every  prisoner  charged  with 
crime ;  which  should  oblige  the  prosecution  to 
establish  the  fact  of  sanity  and  responsibility  in 
questionable  cases,  as  well  as  that  of  guilt,  before 
sentence  is  pronounced.  As  soon  as  guilt  is  proved 
the  presumptions  of  innocence  and  sanity  are  both 
destroyed. 

The  newly  established  intimacy  of  the  relations 
between  insanity  and  criminality,  and  the  conse- 
quent development  of  the  question  of  personal 
responsibility,  have  devolved  upon  society  and  the 

'Dr.  H.  E.  Allison,  "Insanity  and  Homicides,"  American  Medico- 
Psychological  Association,  1898. 


216  The  Science  of  Penology 


courts  of  justice  a  new  and  grave  duty.  A  crimi- 
nal who  is  insane  is  much  more  dreaded  and 
dangerous  at  large  than  a  sane  one.  The  decision 
of  the  question  of  sanity  is  therefore  more  impor- 
tant to  society,  as  well  as  the  prisoner,  than  that  of 
the  question  of  guilt  of  the  crime  charged.  The 
criminal  court  has  become,  by  the  supreme  law  of 
science  and  the  logic  of  necessity,  a  primary  com- 
mission de  lunatico  concerning  every  prisoner 
brought  before  it.  Its  functions  have  been  ele- 
vated above  the  mere  decision  concerning  the 
simple  fact  of  the  guilt  or  innocence  of  the  accused, 
and  the  imposition  of  a  legally  prescribed  sentence 
upon  the  guilty,  to  the  supreme  function  of  deter- 
mining the  moral  responsibility  of  an  individual  for 
his  criminal  acts  ;  to  the  decision  whether  he  shall 
be  condemned  to  a  limited  confinement  for  a  crime 
as  a  punishment,  or  deprived  indefinitely  of  his 
liberty  and  civil  rights  by  an  indeterminate  sen- 
tence to  an  insane  asylum.  For  the  sentence  for 
insanity  is  of  necessity  indeterminate,  limited  only 
by  the  cure  of  the  insanity.  This  has  materially 
increased  the  importance  and  dignity  of  criminal 
procedure.  The  determination  whether  cerebral 
disease  exists  in  a  degree  which  constitutes  irre- 
sponsibility is  difficult  under  ordinary  circum- 
stances, but  in  the  case  of  a  prisoner  accused  of  a 
crime  it  is  usually  complicated,  either  by  the  dis- 
position of  the  prisoner  to  feign  insanity  in  order 
to  escape  a  heavy  penalty,  or  by  his  efforts  to  con- 
ceal it  when  on  trial  for  a  minor  offense,  in  order 


Criminal  Insane  and  Insane  Convicts  217 


to  obtain  a  short  sentence  under  the  criminal  code, 
instead  of  a  commitment  to  an  insane  asylum. 

The  criminally  insane  do  not  ordinarily  differ  in 
appearance  so  much  as  ordinary  criminals  from  the 
normal  type  of  man.  Their  stature,  development, 
cranial  configuration,  physiognomy,  and  physical 
characteristics  place  them  in  a  higher  class.  Their 
intellectual  capacities,  education,  habits  of  thought 
and  life  are  such  as  might  be  expected  in  persons 
of  similar  stations  in  life.  They  may  converse 
rationally  and  intelligently  upon  all  subjects  except 
one.  Until  this  is  discovered  the  crime  appears  to 
be  the  only  link  of  connection  with  the  criminal 
class.  Their  crimes,  however,  are  usually  crimes  of 
personal  violence,  often  of  a  peculiarly  atrocious 
and  shocking  kind.  A  large  proportion  of  the 
murders,  regicides,  homicides,  assaults  to  kill,  ar- 
sons, and  malicious  destructions  of  property,  and 
of  what  are  termed  unnatural  crimes,  result  from 
the  insanity  of  the  perpetrators.  There  were  2| 
times  as  many  inmates  in  the  New  York  State 
Matteawan  Hospital  for  Insane  Criminals  com- 
mitted from  the  courts,  accused  of  "  murder,  man- 
slaughter, etc.,"  and  2\  times  as  many  accused  of 
"assault  to  harm,"  in  1896,  as  convicts  transferred 
from  penal  institutions  after  conviction  for  their 
crimes. *  From  these  crimes  society  demands  pro- 
tection first  of  all,  and  next  from  the  dangers  of  all 
kinds  to  which  it  is  exposed  from  irresponsible 

1  Dr.  H.  E.  Allison,  Medical  Superintendent,  Journal  American  Medi- 
cal Association,  September  19,  1896. 


218  The  Science  of  Penology 


cranks.  These  are  often  arrested,  convicted,  briefly 
confined  for  minor  offenses,  and  then  turned  loose 
again  to  commit  whatever  outrage  a  disordered 
imagination  suggests.  The  International  Prison 
Congress  in  Paris,  1895,  recognized  the  gravity  of 
these  dangers,  and  recommended  a  combination  of 
judicial  and  medical  authority  in  criminal  courts. 

The  necessity  of  expert  knowledge,  examination, 
and  evidence  for  the  determination  of  the  question 
of  sanity  and  responsibility  for  crime,  has  in  recent 
years  created  a  demand  for  professional  scientific 
alienists.  This  has  developed  a  class  of  skilled 
scientists  qualified  to  satisfy  these  social  require- 
ments. It  has  also  greatly  enlarged  medical  know- 
ledge of  mental  disease.  Professional  ability  has 
advanced  proportionately  with  the  demands  upon  it. 

Scientific  Penology  at  the  beginning  of  the 
twentieth  century,  then,  demands  that  the  law  shall 
enforce  an  examination  by  an  expert  alienist,  of 
every  prisoner  accused  of  crime  whose  record,  ap- 
pearance, or  offense  indicates  a  possibility  of  mental 
aberration,  or  who  pleads  insanity  in  defense ;  and 
that  all  who  are  judged  from  such  examination 
irresponsible  or  mentally  diseased,  shall  be  com- 
mitted under  an  indeterminate  sentence  to  a  special 
hospital  for  the  criminal  insane.  Such  a  sentence 
should  condone  the  offense  and  dismiss  the  criminal 
charge.  The  prisoner  should  be  adjudged  danger- 
ous to  society  so  long  as  insanity  continues,  but 
irresponsible  for  the  crime  of  which  he  is  accused, 
even  though  it  were  committed  by  him.  The 


Criminal  Insane  and  Insane  Convicts  219 


doctrine  of  irresponsibility  thus  becomes  a  more 
efficient  protection  of  society  than  the  dogma  of 
punishment.  Under  the  operation  of  natural  law 
the  criminally  insane  reaps  the  consequences  of  his 
acts  in  prolonged  confinement  in  an  asylum,  but 
not  as  a  penalty  under  human  law,  for  the  violation 
of  which  he  was  not  responsible.  As  the  province 
of  criminal  law  has  come  to  be  restricted  more  and 
more  exclusively  to  the  single  purpose  of  social 
protection,  and  the  duty,  right,  and  ability  of  human 
law  to  inflict  punishment  as  a  vengeance,  retribution, 
or  compensation  for  crime  has  been  abrogated  by 
experience  and  rejected  by  a  more  intelligent  com- 
prehension of  the  proper  function  of  human  laws, 
the  only  social  utility  which  the  punishment  of 
crime  retains  is  deterrence  and  the  confinement  of 
the  criminal.  Both  of  these  are  more  efficiently 
secured  by  recognizing  the  irresponsibility  of  both 
the  criminally  and  the  insanely  diseased  (which 
naturally  and  manifestly  requires  their  secure 
confinement  until  cured  of  their  dangerous  pro- 
pensities), than  by  any  effort  to  correct  these 
propensities  by  punishment.  The  experience  of 
ages  has  proved  beyond  question  that  neither  im- 
morality, criminality,  or  insanity  can  be  cured  by 
flagellation  or  any  other  punishment.  They  are  all 
symptoms  of  an  abnormal  diathesis  which  of  neces- 
sity functions  erroneously.  Either  the  abnormality 
which  causes  the  symptom  must  be  cured  while  the 
case  is  confined,  as  in  other  dangerously  diseased 
persons,  or  the  confinement  must  be  continued 


220  The  Science  of  Penology 


indefinitely.  The  symptom  is  presumptive  evidence 
of  the  disease.  When  it  appears,  the  doctor  is  first 
needed,  not  the  judge.  The  only  useful  diagnosis 
is  that  made  by  the  expert  physician.  It  is  his 
judgment,  and  not  that  of  the  lawyer,  which  must 
prescribe. 

Idiots  are  justly  held  irresponsible,  but  science 
has  proved  that  idiocy  grades  upward  into  imbe- 
cility, that  imbecility  varies  by  degrees  upward 
until  it  disappears.  Somewhere  along  the  ascent 
in  the  scale  the  individual  attains  such  control  over 
his  actions  as  constitutes  a  legal  responsibility  for 
crime.  So  also  moral  idiocy  has  been  discerned, 
grading  upward  through  imbecility  to  such  a  sense 
of  right  and  wrong  as  shall  control  action.  Where 
any  particular  subject  stands  among  these  degrees, 
whether  he  is  above  or  below  the  line  of  legal 
responsibility  it  is  the  province  and  duty  of  the 
alienist  to  decide. 

Epileptics  are  known  to  be  subject  to  criminal 
spasms  just  before  and  after  the  time  of  their  epi- 
leptic attacks,  of  which  they  are  afterward  entirely 
oblivious,  and  for  which  they  cannot  be  held  re- 
sponsible, however  atrocious  the  crime  may  have 
been.  There  are  others  often  brought  before 
criminal  courts  who  are  just  as  irresponsible  for 
their  actions  on  account  of  cerebral  deformities  or 
diseases,  who  should  be  confined  to  the  hospital  for 
the  insane,  and  not  the  prison.  No  one  but  a 
skilled  alienist  is  qualified  to  decide  these  things. 

Criminal  law  has  not  yet  reached  this  stage  of 


Criminal  Insane  and  Insane  Convicts  221 


development,  even  in  respect  to  insanity,  but  it  has 
been  very  slowly  approaching  it  by  progressive 
steps.  When  irresponsibility  was  first  recognized 
as  a  defense  in  criminal  trials,  it  was  restricted  to 
total  insanity  and  idiocy.  Thus  in  the  trial  of  Ar- 
nold, an  undoubted  lunatic,  for  shooting  at  Lord 
Onslow  in  1723,  Mr.  Justice  Tracy  said: 

".  .  .  it  is  not  every  kind  of  frantic  humor,  or  something  unac- 
countable in  a  man's  actions,  that  points  him  out  to  be  such  a 
madman  as  is  exempted  from  punishment ;  it  must  be  a  man 
that  is  totally  deprived  of  his  understanding  and  memory,  and 
doth  not  know  what  he  is  doing,  no  more  than  an  infant,  than 
a  brute  or  a  wild  beast  ;  such  a  one  is  never  the  object  of 
punishment." 

This  law  of  regulating  responsibility,  which  has 
been  termed  the  "  wild  beast  "  law,  governed  Eng- 
lish procedure  until  1812,  when  Chief-Justice  Mar- 
shall enlarged  the  limits  of  irresponsibility  to  include 
cases  of  partial  insanity  incapable  of  distinguishing 
right  from  wrong.  He  said, 

"  upon  the  authority  of  the  first  sages  in  the  country  and 
upon  the  authority  of  the  established  law  in  all  times  which 
has  never  been  questioned,  that  although  a  man  might  be  in- 
capable of  conducting  his  own  affairs,  he  may  still  be  answer- 
able for  his  criminal  acts,  if  he  possesses  a  mind  capable  of 
distinguishing  right  from  wrong." 

The  next  advance  was  not  made  until  1843,  when 
in  response  to  a  demand  upon  them  by  the  House 
of  Lords  for  an  authoritative  exposition  of  the  law 
for  the  future  guidance  of  courts,  the  judges  laid 


222  The  Science  of  Penology 


down  a  rule  limiting  the  knowledge  test  to  the  par- 
ticular act  and  time  when  it  was  committed,  as 
stated  by  Dr.  Maudsley  in  these  words : 

"  To  establish  a  defense  on  the  ground  of  insanity,  it  must 
be  clearly  proved  that  at  the  time  of  committing  the  act  the 
party  accused  was  laboring  under  such  a  defect  of  reason 
from  disease  of  the  mind  as  not  to  know  the  nature  and 
quality  of  the  act  he  was  doing,  or  if  he  did  know  it,  that  he 
did  not  know  he  was  doing  what  was  wrong." 

That  is,  the  question  was  not  of  the  insanity  of  the 
accused,  but  whether  he  was  sane  enough  to  know 
that  he  was  doing  wrong  when  he  committed  the 
act.  Dr.  Maudsley  says  of  this  rule  :  "  Were  the 
issue  to  be  decided  by  tossing  up  a  shilling,  instead 
of  by  the  grave  procedure  of  a  trial  in  court,  it 
could  hardly  be  more  uncertain."  * 

The  German  penal  code  is  somewhat  similar  in 
restricting  the  exemption  to  such  a  disease  of  the 
mind  at  the  time  of  the  act  as  excluded  a  free 
determination  of  the  will,  in  these  words  : 

"  An  act  is  not  punishable  when  the  person  at  the  time  of 
doing  it  was  in  a  state  of  unconsciousness  or  of  disease  of 
mind,  by  which  a  free  determination  of  the  will  was  excluded." 

The  article  of  the  French  penal  code  is  :  "  There 
can  be  no  crime  nor  offense  if  the  accused  was  in  a 
state  of  madness  at  the  time  of  the  act."  The  penal 
code  of  the  State  of  New  York  provides  that  re- 
sponsibility is  to  be  presumed  (sec.  17.)  and  the 
burden  of  disproving  it  is  upon  the  accused.  Judge 

1  Maudsley  on  Responsibility  in  Mental  Diseases,  chapter  iv. 


Criminal  Insane  and  Insane  Convicts  223 


Doe,  of  the  New  Hampshire  court,  in  the  case  of 
State  v.  Pike1  says,  "  The  legal  principle,  however 
much  it  may  formerly  have  been  obscured  by  patho- 
logical darkness  and  confusion,  is  that  a  product 
of  mental  disease  is  not  a  contract,  a  will,  or  a 
crime."  Chief-Justice  Perley  charged  the  jury  in 
this  case  to  return  a  verdict  of  not  guilty, 

"  if  the  killing  was  the  offspring  of  mental  disease  in  the  de- 
fendant ;  that  neither  delusion  nor  knowledge  of  right  and 
wrong,  nor  design  or  cunning  in  planning  and  executing  the 
killing  and  in  escaping  or  avoiding  detection,  nor  ability  to 
recognize  acquaintance  or  to  labor  or  transact  business  or 
manage  affairs,  is,  as  a  matter  of  law,  a  test  of  mental  disease  ; 
but  that  all  symptoms  and  all  tests  of  mental  disease  are  purely 
matters  of  fact  to  be  determined  by  the  jury."  a 

The  ripest  fruit  of  the  judicial  wisdom  of  the 
ages,  then,  consigns  the  diagnosis  of  the  most  ab- 
struse and  deceptive  disease  of  humanity  to  the 
ordinary  jury  of  twelve  men  of  the  vicinage,  who 
are  not  intimate  enough  with  the  accused  to  have 
formed  an  opinion  concerning  his  guilt  or  innocence 
of  a  crime.  It  relies  upon  a  verdict  of  the  common- 
sense  of  a  jury  to  decide  upon  the  existence  of  a 
condition,  the  essence  of  which  is  lack  of  sense,  and 
the  symptoms  of  which  are  contrary  to  all  the  ex- 
periences of  common-sense.  If  good  law  is,  as  has 
been  said,  common-sense  enacted,  this  is  no  longer 

>  49  New  Hampshire  Reports,  p.  399. 

•  A  concise  resume  of  the  present  state  of  legal  procedure  in  cases  where 
insanity  is  the  plea  of  the  defense  in  criminal  trials  is  to  be  found  in  the 
United  States  Commissioner's  Report  on  the  Criminal  Insane  in  the  United 
States  and  Foreign  Countries,  1898. 


224  The  Science  of  Penology 


good  law,  for  it  is  no  longer  the  common-sense  of 
intelligent  action  concerning  even  the  ordinary 
diseases  which  attack  mankind.  When  a  person 
shows  symptoms  of  being  sick,  or  diseased,  a  doctor 
is  called  to  decide  what  is  the  matter  with  him,  and 
to  prescribe  the  treatment.  When  mental  disease 
is  made  a  defense  against  a  charge  of  criminality 
the  examination  and  evidence  of  expert  alienists 
should  be  required  by  the  State  to  decide  the  facts, 
and  make  the  proofs  with  authority  to  the  jury. 

The  expert  should  be  called  by  the  State  ;  to  act 
in  an  impartial,  judicial  state  of  mind,  and  not  to 
search  for  reasons  or  arguments  to  sustain  the  posi- 
tion of  either  the  prosecution  or  defense.  Ex- 
perience with  expert  evidence  has  produced  the 
conclusion  that  it  may  be  procured  to  support  or 
contest  either  side  of  almost  every  case.  It  would 
seem  that  the  facts  will  be  best  discerned  and  made 
known  by  the  employment  by  the  State  of  an 
alienist  of  acknowledged  ability  and  experience, 
whose  decisions  shall  be  accepted  as  decisive  by 
both  prosecution  and  defense,  and  so  the  confusion 
from  a  conflict  of  expert  testimony  avoided.  If 
the  accused  is  thus  pronounced  mentally  diseased 
at  the  time  of  the  trial,  the  positive  conclusions  of 
science  and  the  demands  of  justice  require  that 
the  judge  shall  decide  him  to  be  irresponsible  for 
the  criminal  deed,  but  dangerous  to  be  at  large, 
and  therefore  commit  him  to  a  hospital  for  the 
criminal  insane  until  cured.  "  It  should  be  judicial 
authority,  based  upon  expert  medical  advice,  that 


Criminal  Insane  and  Insane  Convicts  225 


orders   commitment   to    a   special    asylum." l      As 
Judge  Doe  says : 

"  That  cannot  be  a  fact  in  law  which  is  not  a  fact  in  science; 
that  cannot  be  health  in  law  which  is  disease  in  fact.  And  it 
is  unfortunate  that  courts  should  maintain  a  contest  with 
science  and  the  laws  of  nature  upon  a  question  of  fact  which  is 
within  the  province  of  science  and  outside  the  domain  of  law."  * 

The  question  of  fact,  which  only  the  special 
science  of  the  professional  alienist  can  determine 
concerning  the  person  accused  of  crime,  is,  whether 
the  individual  is  so  diseased  or  abnormal  in  brain  or 
nervous  constitution  as  to  be  liable  to  commit  crime. 
If  so,  the  accused  is  dangerous  to  society,  and 
should  be  confined.  This  question  of  fact  is  deter- 
mined according  to  the  laws  of  mental  aberration 
with  which  the  alienist  is  familiar,  just  as  the  per- 
tinence of  other  facts  in  the  case  are  determined  by 
the  laws  of  judicial  procedure  by  the  law  judge. 
The  protection  of  society  and  of  the  accused  both 
require,  in  all  criminal  cases  of  doubtful  sanity,  a 
judicial  expert  on  the  bench  to  expound  the  laws  of 
insanity  and  decide  with  authority  in  the  case.  Prac- 
tice in  Pennsylvania  has  nearly  reached  this  plane. 
A  clear,  comprehensive,  and  exhaustive  discussion 
of  this  subject  was  delivered  by  Judge  Gustav  A. 
Endlich  in  a  paper  on  the  "  Proposed  Change  in 
the  Law  of  Expert  Testimony,"  read  before  the 
Pennsylvania  Bar  Association  in  1898,  in  which  he 
says : 

1  The  Criminal  Insane,  S.  J.  Barrows,  p.  13. 
2Boardman  v.  Woodman,  49  New  Hampshire,  p.  150. 


226  The  Science  of  Penology 

"  There  can  be  hardly  any  doubt  that  the  power  to  associate 
with  themselves  as  assessors  experts  whose  office  it  shall  be  to 
advise  upon  matters  scientific,  technical,  etc.,  resides  in  judges 
even  without  legislation.  In  this  State  it  is  implicitly  recog- 
nized as  so  existing  by  the  equity  rules  promulgated  by  the 
supreme  court  in  1894." 

Justice,  the  safety  of  society,  economy  of  time  and 
costs,  would  undoubtedly  be  greatly  subserved  by 
the  appointment  of  an  expert  alienist  in  every  ju- 
dicial district  to  serve  upon  a  fixed  salary,  and  act 
judicially  in  all  cases  of  suspected  or  alleged  mental 
disease. 

The  humane  and  therapeutic  principles  which  now 
regulate  the  public  treatment  of  the  insane  require 
the  removal  of  convicts  who  are  discovered  to  be 
insane  while  undergoing  imprisonment  for  crime 
from  the  rigors  and  discipline  of  the  prison  to  a  hos- 
pital for  the  insane.  It  is  generally  considered 
irrational  and  barbarously  cruel  for  society  to  per- 
sist in  the  punishment  of  one  who  is  incapable  of 
understanding  the  reasons  for  his  restraint.  Science 
and  experience  have  demonstrated  that  continued 
confinement  in  prisons  is  likely  to  transform  a  lim- 
ited-term sentence  of  such  cases  into  a  death  pen- 
alty, and  that  humane  treatment  and  recovery  are 
both  practically  impossible  in  prison. 

"  There  is  in  every  penal  institution  a  certain  proportion  of 
inmates  who  are  epileptics,  paranoiacs,  imbeciles,  or  who  are 
unquestionably  suffering  from  various  other  forms  of  mental 
disease,  such  as  acute  or  chronic  mania,  melancholia,  paresis, 
and  the  various  forms  of  dementia.  These  cases  are  too  often 


Criminal  Insane  and  Insane  Convicts  227 


unrecognized.  They  constitute,  in  the  aggregate,  a  class  of  nu- 
merous individuals  who  are  dangerous  in  their  proclivities, 
who  are  not  amenable  to  ordinary  methods  of  discipline,  and 
who  are  unsafe  to  be  at  large.  Wherever  they  may  be,  they  are 
a  threatening  and  disturbing  element.  Such  persons  should  all 
be  removed  from  the  custody  of  the  prisons,  and  if  possible, 
placed  in  special  institutions  erected  for  them."  l 

When  prison  officials  discover  indications  of  in- 
sanity in  a  prisoner,  it  is  their  duty  to  notify  the 
committing  magistrate,  who  should  immediately 
order  an  examination  by  the  official  alienist.  If  he 
reports  the  prisoner  insane,  the  magistrate  should 
order  the  transfer  of  the  prisoner  to  an  insane  hos- 
pital for  criminals. 

It  is  a  common  thing  for  criminals  serving  long- 
time sentences  to  feign  insanity  in  order  to  secure, 
by  their  removal  to  a  hospital,  greater  comfort, 
liberty,  and  opportunity  for  escape.  They  are 
often  so  skilful  in  their  simulations  as  to  success- 
fully deceive  all  with  whom  they  come  in  contact, 
sometimes  even  expert  alienists.  The  professional 
alienist,  however,  is  the  only  capable  authority  for 
deciding  the  question  of  mental  disease.  When  a 
prisoner,  then,  shows  indications  of  insanity,  it  is 
the  duty  of  the  warden  to  summon  the  alienist, 
make  known  to  him  all  he  knows  concerning  the 
prisoner  which  may  have  a  bearing  upon  the  diag- 
nosis, give  him  all  the  time  he  desires  for  examina- 
tion, and  then  accept  his  decision  as  conclusive. 
If  the  convict  is  pronounced  insane,  or  mentally 

1  Dr.  W.  E.  Allison,  Report  of  National  Prison  Association,  1898,  p.  329. 


228  The  Science  of  Penology 

diseased,  he  should  be  immediately  transferred  to 
the  hospital  for  the  insane  criminal. 

"  In  all  penal  institutions  the  physician  should  be  required 
by  law  to  examine  thoroughly  into  the  mental  and  physical 
characteristics  of  every  inmate  coming  under  his  charge,  with 
a  view  to  determining  the  best  possible  disposition  of  such 
an  individual."  1 

In  cases  of  doubtful  insanity  the  decision  should 
be  left  to  the  expert  of  the  State. 

The  importance  of  an  expert  professional  diag- 
nosis by  an  authority  recognized  by  the  State,  in 
cases  of  alleged  insanity  in  criminal  trials,  and  of 
convicts  serving  time  in  prison,  indicates  the  neces- 
sity of  a  legal  provision  for  the  appointment  of 
learned  and  skilful  medical  officers  to  perform  this 
duty.  Such  officers  should  have  sufficient  skill  and 
reputation  to  merit  the  confidence  both  of  the  pub- 
lic and  of  the  patient.  The  public  would  depend 
upon  the  accuracy  of  their  decision  for  protection 
against  the  insane  violence  of  liberated  lunatics, 
and  the  patient  would  depend  upon  it  for  proper 
hospital  treatment,  if  really  insane,  which  might 
possibly  involve  the  prolongation  of  his  confine- 
ment for  life.  Another  grave  function  which  would 
devolve  upon  such  an  officer  is  the  determination 
of  the  question  of  the  release  of  a  convict  who  is 
apparently  insane  at  the  expiration  of  his  sentence. 
These  three  classes  of  questions  are  each  of  them 
questions  concerning  the  existence  of  disease,  and 
its  gravity  and  nature  ;  whether  it  makes  the  subject 

1  Dr.  W.  E.  Allison,  Report  of  National  Prison  Association,  1898,  p.  331. 


Criminal  Insane  and  Insane  Convicts  229 


dangerous  to  himself  or  the  public  if  free  from 
restraint,  or  whether  he  is  responsible  for  his  acts. 
These  are  the  paramount  social  questions  in  each 
case,  and  they  can  be  safely  intrusted  only  to  the 
decision  of  a  skilled  and  responsible  medical  official. 

The  present  state  of  both  medical  and  penologi- 
cal  science  requires  the  legal  appointment  of  compe- 
tent official  alienists  having  authority  to  decide  all 
questions  concerning  the  insanity  of  persons  accused 
or  convicted  of  crime. 

They  also  require  the  establishment  of  special  hos- 
pitals for  the  confinement  of  the  criminal  insane  and 
insane  convicts,  apart  both  from  the  prison,  and 
from  general  hospitals  for  the  insane. 

These  hospitals  should  not  be  connected  with 
prisons,  because  they  are  not  in  any  sense  penal  in- 
stitutions. Their  inmates  are  not  confined  in  them 
for  punitive  purposes  but  for  curative.  Their 
management  should  not  be  disciplinary,  like  that  of 
prisons,  but  solely  custodial  and  therapeutic,  like 
that  of  the  insane  hospital.  "  The  epileptic,  feeble- 
minded, and  insane  are  not  amenable  to  ordinary 
penal  discipline  and  should  be  removed  therefrom."  * 
The  prison  warden  is  not  ordinarily  qualified  by 
education  for  the  superintendence  of  such  an  insti- 
tution. The  regulations  and  conduct  of  prisons 
are  unfit  and  inapplicable  to  hospitals.  The  only 
valid  arguments  urged  in  favor  of  their  connection 
with  prisons  are  the  assurance  which  prison  guards 
give  of  a  maximum  of  security,  and  the  economy 

1  Dr.  W.  E.  Allison,  Report  of  National  Prison  Association,  1898,  p.  332. 


230  The  Science  of  Penology 


of  a  single  superintendence.  But  equal  security 
can  be  assured  in  a  properly  constituted  and  man- 
aged hospital  for  insane  criminals.  Such  a  hospital 
should  be  under  a  medical  alienist  as  superintendent, 
with  a  medical  staff  and  trained  attendants,  not 
keepers  accustomed  to  use  force  in  restraint  instead 
of  that  system  of  kindness  which  has  of  late  years 
transformed  insane  asylums  into  true  hospitals. 
True  social  economy  will  be  best  secured  by  obedi- 
ence to  the  laws  of  science  and  the  humane  dictates 
of  reason  ;  by  depending  upon  the  restoration  and 
cure  of  the  diseased  under  skilled  treatment  to  re- 
duce the  public  cost  of  maintenance,  instead  of 
continuing  to  defray  these  for  life  under  prison 
management. 

Nor  should  such  institutions  be  connected  with 
general  hospitals  for  the  insane,  whose  patients  are 
from  all  ranks  of  society.  The  honest,  respectable, 
cultivated,  and  intelligent  inmates,  and  their  rela- 
tions and  friends,  would  strenuously  object  to  the 
compulsory  association  with  convicts  and  the  crim- 
inally disposed.  Many  would  refuse  to  expose  their 
relatives  to  such  associations,  retaining  them  at  lib- 
erty to  the  public  peril  and  defeating  to  this  extent 
the  purpose  of  these  institutions.  It  is  certainly  an 
unjustifiable  outrage  to  condemn  the  afflicted,  who 
are  incapable  of  exerting  or  defending  their  per- 
sonal rights  under  the  law  ;  who,  though  suffering 
from  a  most  grievous  and  terrible  malady,  have 
committed  no  transgression  and  done  no  harm,  to 
the  same  place  of  confinement  with  the  vicious, 


Criminal  Insane  and  Insane  Convicts  231 


depraved,  criminally  disposed,  and  violent.  The 
presence  of  the  criminal  insane  and  convicts  among 
the  patients  in  a  general  hospital  seriously  interferes 
with  and  retards  the  recovery  of  the  other  inmates. 
It  disturbs  the  tranquillity  of  the  institution,  intro- 
duces germs  of  mental  and  moral  corruption,  and 
compels  an  otherwise  unnecessary  rigor  of  discipline 
over  all  to  prevent  the  escape  of  the  dangerous 
criminals.  Thus  it  impairs  the  utility  of  the  hos- 
pital. "  The  criminal  insane,  morover,  surfer  from 
the  chronic  and  sub-acute  forms  of  disease  which  are 
not  amenable,  in  the  majority  of  cases,  to  cure."  l 
The  large  majority  of  the  criminal  insane  and  in- 
sane convicts  will  be  inmates  for  life,  and  require 
chiefly  humane  custody,  which  can  be  much  more 
economically  provided  in  hospitals  especially 
adapted  to  their  peculiar  needs. 

The  States  of  New  York,  Massachusetts,  Illinois, 
and  Michigan  have  already  provided  special  hospi- 
tals for  their  criminal  insane  ;  four  other  States  have 
departments  for  the  insane  in  connection  with  their 
prisons.  There  are  special  hospitals  for  criminal 
insane  in  Ontario,  England,  Scotland,  Ireland,  Sax- 
ony, Baden,  Hungary,  Belgium,  and  Norway.  In 
Italy  there  are  three  ;  and  other  domestic  and  for- 
eign states  have  projected  them.  Prisoners  in  penal 
or  reformatory  institutions  who  give  indications  of 
insanity  about  the  time  of  the  expiration  of  their 
sentence  should  be  reported  to  the  court  which  sen- 
tenced them,  and  held  until  orders  are  received  from 

1  Dr.  W.  E.  Allison,  Report  of  National  Prison  Association,  1898,  p.  330. 


232  The  Science  of  Penology 


it  for  their  disposition.  The  magistrate  receiving 
the  report  should  order  an  immediate  examination 
by  the  official  expert,  and  if  the  prisoner  is  pro- 
nounced insane  by  him,  he  should  order  his  com- 
mittal to  the  hospital  for  the  criminal  insane  until 
cured,  when  he  should  be  discharged  by  the  super- 
intendent. 

Inmates  of  hospitals  for  the  insane  who  have  been 
received  from  penal  or  reformatory  prisons,  and  who 
are  pronounced  cured  by  the  superintendent  in 
charge  before  the  expiration  of  the  sentence  under 
which  they  were  originally  committed  to  prison, 
should  be  returned  to  the  prison  from  which  they 
came,  to  serve  the  remainder  of  their  sentence. 
Time  spent  in  hospital  should  count  as  time  spent 
in  prison,  and  such  is  the  almost  universal  practice. 

Prisoners  under  sentence  of  death  who  become 
insane  before  execution  should  be  transferred  to  the 
hospital  for  insane  criminals  by  order  of  the  judge 
who  sentenced  them,  and  stay  of  execution  granted 
until  they  are  cured.  It  is  revolting  to  execute  an 
insane  person. 

Inmates  of  hospitals  for  the  insane  who  have  been 
accused  of  crimes  of  violence  and  atrocity,  the  legal 
penalty  for  which  is  death  or  life  imprisonment, 
should  not  be  released  by  the  superintendent  when 
he  adjudges  them  cured,  but  the  official  expert 
should  examine  them  and  report  to  the  governor, 
who  may  discharge  them,  if  he  considers  it  safe  to 
do  so,  or  remand  them  to  execution,  or  prison,  at 
his  discretion. 


Criminal  Insane  and  Insane  Convicts  233 


All  other  inmates  should  be  discharged  by  the 
superintendent  when  cured,  and  it  is  safe  for  the 
public  to  have  them  at  liberty.  Each  case  should 
be  carefully  and  exhaustively  tested  for  the  com- 
pleteness and  permanence  of  the  cure,  and  the  pos- 
sible danger  to  society  of  the  release.  The  safety 
of  society  should  control  the  release  in  every  case. 
So,  if  doubt  exists  concerning  this,  the  confinement 
should  continue.  Many  terrible  crimes  have  been 
committed  by  prisoners  released  as  cured  from  hos- 
pitals for  the  insane. 


CHAPTER   XII. 

THE  INSTINCTIVE  AND  HABITUAL  CRIMINAL. 

Proportion  of  Recidivists  —  The  most  Dangerous  and  least  Controlled 
Category — The  Reprobates — The  Instinctive  Criminal  easily  Identified 
— How  to  be  Disposed  of — The  Habitual  Offender — Proportion  of — An 
Anomaly  of  Criminal  Jurisprudence — Generally  a  Non-Resident — 
Necessity  of  Bertillon  Identification — Product  of  Social  Neglect — 
Society's  Duty  to  the  Discharged  Prisoner — The  Discharge  on  Parole. 

DR.  D RAH  MS  estimates  that  instinctive  crimi- 
nals constitute  about  ten  per  cent,  and  habit- 
ual criminals  from  twenty-five  to  thirty  per  cent., 
both  together  making  about  forty  per  cent,  of  all 
legal  offenders.1  Professor  Ferri  estimated  these 
catagories  to  comprise  from  forty  to  fifty  per  cent,  of 
the  criminals  in  confinement.  Sixty-six  per  cent, 
of  those  committed  to  the  Massachusetts  State 
prison  during  the  year  ending  September  30 
1899,  had  been  imprisoned  before,  that  is  they  were 
recidivists.2  The  recidivistic  population  of  all  our 
penal  institutions  seems,  from  the  imperfect  data 
obtainable,  to  be  constantly  increasing.  This  is  an 
indication  both  that  the  present  penal  codes  fail  to 
suppress  crime,  and  that  a  large  proportion  of  the 
crimes  committed  is  to  be  charged  against  the  pro- 

1  The  Criminal,  p.  194. 

8  Report  Commissioners  of  Prisons,  pp.  14-17. 

234 


The  Instinctive  and  Habitual  Criminal  235 


fessional,  or  as  we  designate  him  in  our  categories, 
the  "  instinctive  and  habitual  criminal."  As  the 
professional  criminal  is  more  expert  in  perpetrating 
and  concealing  crime,  and  in  escaping  punishment, 
the  amount  of  crime  due  to  this  category  is  un- 
doubtedly a  much  larger  proportion  of  the  whole 
than  the  imprisoned  recidivists  are  of  the  total 
number  of  prisoners  in  confinement. 

One  of  its  distinguishing  characteristics  is  a  crim- 
inal vanity,  and  an  ambition  to  become  notorious. 
The  crimes  which  it  commits  are  therefore  those 
planned  with  cunning,  executed  with  premeditated 
care,  with  daring,  and  often  with  much  labor.  The 
instinctive  criminals  commit  most  of  the  great 
crimes  which  shock,  terrify,  and  afflict  the  public  : 
the  assassinations  of  rulers  and  great  men  ;  the 
great  thefts,  robberies,  burglaries,  and  destruction 
of  property.  They  are  the  anti-social,  anarchistic 
hostiles  of  civilization,  the  survivors  or  atavistic 
remnants  of  savagery.  The  crimes  of  this  category 
are  of  greater  magnitude,  as  well  as  more  numer- 
ous, than  those  of  the  rest  of  the  criminal  class. 
Moreover,  the  descendants  of  the  instinctive  and 
habitual  criminals  are  destined  to  succeed  their 
parents  in  the  criminal  trade.  The  law  of  heredity 
forces  them  into  opposition  to  restraint;  into  hostility 
to  order,  and  violation  of  law.  This  is  the  category 
which,  in  freedom,  is  continually  reproducing  and 
replenishing  the  criminal  class.  So  long  as  it  is  un- 
confined  there  will  always  be  several  growing  up  to 
supply  the  place  of  every  one  arrested.  Repression 


236  The  Science  of  Penology 

and  control  of  instinctive  and  habitual  criminals, 
therefore,  are  serious  duties.  Considering  the  re- 
lentless hostility  and  ceaseless  depredations  of  this 
large  portion  of  the  criminal  class,  together  with  the 
fact  that  it  is  the  most  readily  and  certainly  iden- 
tified of  all,  it  is  surprising  that  society  has  never 
yet  adopted  any  rational  plan  for  its  extermination. 
It  has  relied  for  ages  upon  the  futile  principle  of 
the  lex  talionis  for  protection,  upon  the  dogma  of 
punishment,  with  an  ignorant  superstition  which 
seems  incredible  in  view  of  the  constant  failure  of 
these  measures  to  accomplish  their  object. 

This  is  the  category  of  the  reprobates  whom  St. 
Paul  described  in  the  first  century  of  the  Christian 
era  as, 

"  being  filled  with  all  unrighteousness,  fornication,  wickedness, 
covetousness,  maliciousness,  full  of  envy,  murder,  debate,  de- 
ceit, malignity  ;  whisperers,  backbiters,  haters  of  God,  despite- 
ful, proud,  boasters,  inventors  of  evil  things,  disobedient  to 
parents,  without  understanding,  covenant-breakers,  without 
natural  affection,  implacable,  unmerciful ;  who,  knowing  the 
judgment  of  God,  that  they  which  commit  such  things  are 
worthy  of  death,  not  only  do  the  same,  but  have  pleasure  in 
them  that  do  them."  ' 

This  category  has  perpetuated  its  identity  through 
all  the  generations  of  two  thousand  years,  and  will 
distress  mankind  for  two  thousand  years  to  come 
unless  the  methods  of  dealing  with  it  are  changed. 
When  the  instinctive  criminal  is  brought  before 
the  court  for  trial,  in  ninety-nine  cases  out  of  a 

1  Epistle  to  the  Romans,  chapter  i.,  29-32. 


The  Instinctive  and  Habitual  Criminal  237 


hundred  his  very  physiognomy  betrays  him.  His 
deformed  physical  development,  projecting  facial 
eminences,  heavy  jaws,  square,  projecting  chin,  large 
cheek  bones,  projecting  ears,  thick  hair,  thin  beard, 
a  symmetry  of  features,  furtive,  feline  glance  of  the 
eye,  cringing  manner  of  movement,  and  other  well 
marked  stigmata  make  it  evident  that  he  is  not  as 
other  men,  even  though  no  one  particular  charac- 
teristic can  be  positively  relied  upon  to  establish 
his  caste.  The  instinctive  criminal  is  the  same  in 
general  appearance  the  world  over,  of  whatever 
race  or  people  he  may  be.  The  experienced  judge 
will  identify  him  ordinarily  at  a  glance,  before  any 
evidence  is  produced,  as  a  partially  civilized 
specimen  of  his  kind.  If  he  does  not,  an  examina- 
tion of  his  physiological  and  psychological  charac- 
teristics will  easily  determine  the  case.  Dr.  Drahms 
specifies  moral  insensibility  as  a  universal  symptom 
of  criminality ;  cruelty,  lack  of  remorse,  lack  of 
foresight,  mental  and  emotional  instability,  subjec- 
tion to  "  nerve  storms,"  fidelity  to  "  pals,"  untruth- 
fulness,  vanity,  pride  of  caste,  use  of  slang  and 
tattooing,  insensibility  to  physical  pain,  drunken- 
ness and  other  vices,  are  almost  universal  with 
instinctive  criminals.  Some  of  them  will  be  mani- 
festly incapable  of  honest  self-support  on  account 
of  physical  degeneracy  ;  others  from  mental  degen- 
eracy, imbecility,  partial  insanity,  and  neurotic  dis- 
eases, like  epilepsy.  "  Crime  is  a  sort  of  outlet  in 
which  the  unsound  tendencies  of  the  neurotic  are 
discharged  ;  they  would  go  mad  if  they  were  not 


The  Science  of  Penology 


criminals,  and  they  do  not  go  mad  because  they 
are  criminals."  In  all  of  these  the  criminal  psy- 
chosis, like  the  neurosis  of  which  it  is  the  mental 
example,  is  irresponsive  to  punishment  as  a  cure. 
Habitual  drunkenness  and  prostitution  are  likewise 
often  the  results  of  instinctive  criminality  or  de- 
pravity. The  instinctive  criminal  is  a  criminal  by 
nature,  unchanged  by  environment  or  training,  as 
prone  to  do  evil  as  to  breathe.  It  is  a  manifest 
travesty  of  justice  and  the  dignity  of  judicial  pro- 
cedure to  sentence  any  instinctive  criminal  to  a  brief, 
or  to  any  limited,  term  of  imprisonment ;  whether  the 
crime  for  which  he  was  arraigned  be  trivial  or  perni- 
cious, whether  the  criminal  be  morally  responsible  or 
irresponsible.  Society  can  only  be  relieved  from  the 
plague  of  him  by  his  cure  or  continual  confinement. 
As  soon  as  he  is  freed  uncured  he  will  return  to  his 
criminality,  by  the  compulsion  of  his  nature.  His  na- 
ture is  such  that  it  cannot  be  controlled  by  external 
influences  or  laws,  or  the  internal  reason  or  will  which 
he  has.  He  is  in  most  instances,  doubtless,  as 
morally  and  socially  irresponsible  for  his  actions  as 
the  manifestly  insane.  Science,  however,  is  less 
able  to  draw  the  line  which  separates  the  responsi- 
bility from  the  irresponsibility  of  instinctive  crimi- 
nality than  of  insanity.  Even  the  question  of  guilt 
is  secondary  in  importance  in  prosecutions  for  crime 
to  the  question  of  criminality  of  character.  If  an 
instinctive  criminal  is  convicted  of  a  crime  which 
warrants  a  life  sentence,  he  should  certainly  be  sent 

1  Maudsley,  Responsibility  in  Mental  Diseases,  p.  34. 


The  Instinctive  and  Habitual  Criminal  239 


to  the  penitentiary  for  life  ;  but  for  all  other  crimes 
or  misdemeanors  which  may  enable  the  law  to  lay 
hold  of  him,  however  trivial,  he  should  be  consigned 
to  the  reformatory  until  cured,  or  transferred  as 
incurable  to  the  penitentiary,  for  the  permanent 
protection  of  society  and  the  prevention  of  the  re- 
production of  his  species.  Neither  justice,  mercy, 
nor  common-sense  are  subserved  by  any  other 
course  with  him.  This  breed  must  be  exterminated 
with  relentless  vigor.  The  marriages  of  all  crimi- 
nals should  be  prohibited,  but  the  utmost  vigilance 
should  be  exercised  to  prevent  the  marriage  of  the 
instinctive. 

The  "  habitual  offender  "  may  or  may  not  be  an 
instinctive  criminal.  Those  who  are  not,  are  the 
product  of  environment.  With  a  comprehensive 
treatment  of  criminality,  the  habitual  offender 
should  not  be  so  difficult  of  identification,  or  so  long 
suffered  as  the  instinctive  criminal.  Indeed  there 
need  not  and  should  not  be  any  such  class,  or 
individuals.  Yet  under  existing  systems  of  Penology 
the  habitual  criminal  represents  about  one  fourth  to 
one  third  of  all  legal  offenders.1  Douglas  Morrison 
says  in  his  preface  to  Juvenile  Offenders. 

"  It  is  perfectly  well  known  to  every  serious  student  of 
criminal  questions,  both  at  home  and  abroad,  that  the  propor- 
tion of  habitual  criminals  in  the  criminal  population  is  steadily 
on  the  increase  and  was  never  so  high  as  it  is  now." 

In  different   sections   of   England  the  proportion 

1  The  Criminal,  Drahms,  p.  194. 


240  The  Science  of  Penology 


of  prisoners  tried  who  had  been  convicted  before 
varied  from  forty-seven  per  cent,  in  London,  to 
seventy-nine  per  cent,  in  Liverpool,  Birmingham, 
and  Bradford.  An  habitual  criminal  is  an  anomaly 
of  penal  jurisprudence,  the  supreme  object  of  which 
is  to  prevent  an  offender  who  has  once  been  con- 
victed from  repeating  the  offense. 

The  crime  habit  is  acquired  like  all  others  by  con- 
tinual repetition,  for  which  there  must  be  freedom 
from  restraint.  The  practice  of  crime  cannot  attain 
the  uncontrollable  power  and  influence  of  habit  by 
a  very  few  indulgences  alone  ;  although  the  natural 
proclivities  of  some  individuals  are  so  favorable  that 
the  habit  appears  to  be  very  easily  established  in 
them.  The  foundations  and  beginnings  of  habitual 
criminality  are  laid  in  early  life,  and  by  the  practice 
of  small  errors  and  unnoticed  or  unpunished  dis- 
honesty. Petty  thefts,  successful  deceptions  in 
childhood,  the  lack  of  moral  culture,  allowing 
egoism  to  outgrow  control  and  principle ;  evil 
youthful  environment,  form  the  habit,  which  impels 
its  contractor,  as  his  age,  strength,  and  courage  in- 
crease, to  advance  by  degrees  from  insignificant  to 
serious  peccadillos,  until  finally,  becoming  over  pre- 
sumptuous, he  falls  under  the  condemnation  of  the 
law,  a  confirmed  habitual  criminal  perhaps  upon  his 
first  conviction.  The  crimes  of  this  category  are 
less  heinous  than  those  of  the  strictly  instinctive 
criminals,  but  they  fret  and  annoy  more  generally. 
This  entire  category  would  be  eliminated  by  the 
general  adoption  of  the  indeterminate  sentence  to  a 


The  Instinctive  and  Habitual  Criminal  241 


reformatory  for  all  local  offenders  convicted  of 
serious  crime. 

The  habitual  criminal,  however,  does  not  ordi- 
narily return  to  the  locality  of  his  former  conviction 
when  released.  Every  consideration  leads  him  to 
prosecute  his  trade  where  he  will  be  least  suspected 
and  watched,  and  where  if  he  is  arrested  there  will 
be  no  prejudicial  record  against  him.  The  cumula- 
tive increase  of  punishment  for  repeated  crimes  also 
influences  the  habitual  offender  to  shun  the  risk  of 
conviction  in  courts  where  his  identity  is  likely  to  be 
established. 

In  Massachusetts,  24,737  of  those  arrested  in 
cities  were  non-residents  ;  being  nearly  thirty-two 
per  cent,  of  the  whole  number  arrested  in  i  898.*  The 
general  adoption  of  the  Bertillon  system  of  identi- 
fication would  very  generally  prevent  such  persis- 
tence in  crime  as  constitutes  the  habitual  criminal. 
When  a  non-resident  or  person  of  unknown  ante- 
cedents is  arrested,  his  measurement  should  be 
taken  and  sent  immediately  to  the  central  bureau 
(which  should  have  the  records  of  all  living  crimi- 
nals previously  arrested),  and  his  history,  if  found 
there,  would  determine  the  disposition  to  be  made 
of  him  by  the  court.  There  is  no  rational  excuse 
for  allowing  any  one  to  practise  the  commission  of 
crime  in  a  civilized  community  until  it  becomes 
habitual  to  him.  It  is  a  penological  law  that  in- 
stinctive and  habitual  criminals  should  be  imprisoned 
under  an  indeterminate  sentence  as  soon  as  discovered. 

1  Report  of  Massachusetts  Prison  Association  for  1899,  p.  n. 
16 


242  The  Science  of  Penology 


Experience  has  proved  that  a  large  proportion 
of  the  prisoners  sent  to  reformatories,  even  under 
indeterminate  sentences  (so  called),  are  discharged 
as  cured  after  a  very  brief  term  of  treatment. 
Society  is  not  done  with  them,  then,  even  by  such 
a  sentence,  but  will  have  to  receive  them  back  into 
its  ranks  to  plague  it  sooner  or  later. 

44  Habitual  criminality  is  usually  attributed  to  ingrained  evil 
character.  But  much  of  it  has  its  origin  in  mere  weakness  ; 
lack  of  opportunity  ;  the  discouragement  which  results  from 
failure  to  secure  a  place  in  the  world,  and  the  friendlessness, 
not  to  say  enmity,  of  the  community.  .  .  .  The  community 
is  indifferent  ;  the  taxpayer  has  no  realization  of  the  im- 
portance of  restoring  the  criminal  to  a  place  in  the  world  ; 
and  even  the  Church  sometimes  looks  askance  at  the  man  who 
has  once  worn  prison  garb.  .  .  . 

'4  The  appeal  in  behalf  of  the  discharged  prisoner  must  be 
not  merely  to  the  philanthropist,  but  to  the  business  man.  It 
must  be  made  clear  that  the  wise  treatment  of  the  ex-prisoner 
is  not  a  matter  of  charity,  merely,  but  of  common-sense  and 
good  judgment."  ' 

It  is  more  than  that  even,  it  is  a  matter  of  social 
economy  and  self-protection.  Having  arrested  and 
reformed  him,  having  cured  and  trained  him,  hav- 
ing broken  up  the  habit  of  criminality  and  incul- 
cated the  habit  of  industry  and  self-support,  having 
taught  him  a  trade  and  inspired  him  with  principles 
of  honesty  and  morality,  the  State  cannot  afford  to 
thrust  him  out  alone  and  unaided  into  the  struggles 
and  temptations  of  competitive  social  existence. 
To  loose  a  prisoner  from  all  restraints,  to  remove 

1  J.  J.  Lytle,  Report  of  National  Prison  Association,  1899,  p.  184  et.  seq. 


The  Instinctive  and  Habitual  Criminal  243 


all  helps  upon  which  he  depended,  to  expose  him 
suddenly,  weakened  by  confinement,  to  attack  on 
all  sides  from  his  former  enemies  within  and  with- 
out, is  most  likely  to  sacrifice  at  once  all  that  has 
been  expended  upon  him  in  years  of  reformation. 
This  is  the  reason  why  Mr.  Brockway  refused  to 
release  his  prisoners  before  places  were  found  for 
them  where  they  could  be  tested  in  free  life  under 
temporary  surveillance.  It  is  the  duty  of  society 
to  give  the  discharged  prisoner,  especially  the 
habitual  criminal  whose  character  was  due  to  its 
neglect,  a  fair  start  upon  an  honest  career  when  it 
withdraws  its  restraining  hand  from  him  as  a 
convalescent.  It  cannot  rely  upon  voluntary 
philanthropy,  Christianity,  or  any  irresponsible 
organization.  All  these  agencies  are  inadequate. 
Some  employ  wise  methods  ;  some  are  more  danger- 
ous than  useful.  Some  discharged  prisoners'  Homes 
have  become,  for  lack  of  official  supervision,  re- 
sorts to  criminals  where  crimes  have  been  hatched 
and  planned.  The  Government  is  the  only  agent 
competent  to  discharge  this  final  duty  also. 

It  is  comparatively  easy  for  the  Government  to 
enact  that  all  prisoners  shall  be  tentatively  released 
upon  parole  of  good  behavior,  for  a  time  measured 
according  to  the  apparent  character  of  the  prisoner. 
All  of  the  necessary  machinery  of  surveillance  and 
assistance  exists  already  in  the  prison  wardens  and 
in  the  magistracy  and  police  of  the  discharged 
prisoners'  domicile.  Prison  wardens  should  be 
obliged  to  keep  in  regular  monthly  correspondence 


244  The  Science  of  Penology 


with  every  prisoner  released  until  he  becomes  per- 
manently established  in  honest  free  living.  We 
have  then  this  law  of  Penology,  to  which  the  re- 
formed man  will  not  object,  that  all  prisoners 
should  be  primarily  released  upon  conditional  parole, 
and  returned  to  prison  for  its  violation. 


CHAPTER  XIII. 

JUVENILE    AND    FIRST    OFFENDERS PROBATION 

AND    PAROLE. 

The  most  Extensive  and  Difficult  Branch  of  Penology — Juvenile  Offenders 
Defined — The  Criminal  Age — Statistics  and  Deductions — The  Problem 
Stated — Its  Solution — Probation  Officers — Sentence  for  Light  Offenses 
— When  Severe  Measures  are  Necessary — For  Crimes  of  Lust — For 
Felonies  and  Heinous  Crimes — Insane  and  Defectives — The  Probation 
System — Requirements  and  Advantages — Experience  of  Massachusetts 
Losses  by  Failure  to  use  the  Privilege — Possible  Saving — Arrests  for 
Drunkenness  —  For  Other  Offenses — Parole — Duty  of  State  to  Dis- 
charged Prisoners — How  to  be  Exercised — Conditions  of  Parole — 
Probation,  Reformation,  and  Parole. 

IF  completely  effective  measures  can  be  devised 
for  the  permanent  cure  or  the  restraint  of  the 
criminal  disposition  of  juvenile  and  first  offenders, 
and  thus  prevent  them  from  repeating  crime,  the 
criminal  class  will  be  extirpated  before  it  is  formed, 
and  the  objects  of  criminal  legislation  largely  ac- 
complished ;  for  every  criminal  passes  through  this 
stage.  This  category  is  the  most  amenable  of  all 
to  reformatory  treatment,  and  therefore  the  most 
hopeful  subject  of  social  effort.  Moreover,  juve- 
nile crime  is  increasing,  both  in  Europe  and 
America.1  This  increase  demonstrates  irrefutably 

1  See  Douglas  Morrison,  The  Juvenile  Offender,  p.  16,  and  Dr.  Drahms, 
The  Criminal,  p.  272. 

245 


246  The  Science  of  Penology 


that  the  methods  of  restriction  established  by  the 
present  criminal  codes  have  not  kept  pace  with  the 
progress  and  needs  of  civilization. 

But  the  causes,  conditions,  and  cure  of  juvenile 
criminality  embrace  the  entire  range  of  social 
science,  in  all  its  physical,  psychical,  ethical,  and  re- 
ligious branches.  It  is,  therefore,  by  far  the  most 
extensive,  difficult,  and  important  section  of  Penol- 
ogy. Although  complete  success  is  not  to  be  ex- 
pected without  complete  social  regeneration,  science 
and  experience  can  offer  remedies  which  will  very 
materially  reduce  the  numbers  of  this  category,  and 
consequently  of  the  dangerous  element. 

Juvenile  offenders  are  all  those  persons  above  the 
school  age  of  six  years,  and  below  the  age  limit  for  re- 
formatory treatment  of  twenty-five  years,  when  they 
first  fall  into  the  hands  of  the  officers  of  the  law.  Na- 
ture makes  two  subdivisions  of  them  along  the  line 
of  criminalresponsibility,  which,  though  oftendifficult 
of  discernment,  normally  runs  at  the  upper  school 
age  of  fifteen  years.  These  divisions  by  law  and 
common  consent  require  quite  different  treatment. 
Juvenile  offenders  below  this  line  of  responsibility 
belong  to  the  category  of  "  presumptive  "  rather 
than  actual  criminals.  They  will  be  considered 
later  under  that  heading.  They  should  never  be 
held  or  dealt  with  as  real  criminals  under  the  law, 
except  in  the  rare  cases  when  great  crimes,  indica- 
tive of  serious  moral  depravity,  require  severe  and 
certain  repression.  We  confine  our  attention  here 
to  juvenile  and  first  offenders  above  the  school  age. 


Juvenile  and  First  Offenders          247 


The  decade  between  fifteen  and  twenty-six  years 
of  age  is  esteemed  the  character-forming  time  of  life. 
It  is  the  plastic  period  in  which  is  moulded, 
generally,  the  future  career  of  most  individuals. 
Criminologists  name  it  the  criminal  age,1  because 
in  this  decade  convictions  reach  their  maximum 
number  according  to  age.  It  is  the  time  when 
youths  are  generally  compelled  by  poverty  to  begin 
to  support  themselves,  or  impelled  to  take  criminal 
risks  to  improve  their  condition  or  gratify  their 
desires.  They  are  then  least  capable  of  earning  an 
honest  living,  or  qualified  to  resist  temptations. 
The  careful  and  extensive  investigations  of  Douglas 
Morrison,  recorded  in  his  Juvenile  Offenders,  show 
these  offenders  to  be  as  a  class  below  the  average 
in  health,  height,  and  strength.  The  death  rate  in 
English  industrial  schools  is  twice  as  great  among 
boys,  and  three  times  as  great  among  girls,  as 
among  those  of  the  same  ages  outside.  Boys  were 
seven  inches  shorter,  and  24^  Ibs.  lighter  than 
those  in  the  public  schools  ;  39  in  loowere  orphans  ; 
29  per  cent,  were  abnormally  defective,  to  1 7  per 
cent,  in  day  schools.  Similar  conditions  prevailed 
among  the  juvenile  inmates  of  reformatories  and 
prisons.  One  half  of  the  juvenile  offenders  were  ap- 
parently driven  into  crime  by  incapacity  of  one  kind 
or  another.2  Of  the  juvenile  offenders  committed 
to  English  reformatories  in  1891,  66  per  cent,  were 

1  The  Criminal,  Dr.  Drahms,  p.  283  ;     yuvenile  Offenders,  Morrison,  p. 
58  et  seq. 

*  Juvenile  Offenders,  pp.  88-110. 


248  The  Science  of  Penology 

either  full  or  half  orphans,  or  were  not  living  with 
parents  ;  44  per  cent,  had  both  parents  alive.1  The 
number  of  incorrigible  children  among  them  does 
not  exceed  seven  or  eight  per  thousand.  "  The 
weakness  of  will  in  the  parent  reappears  in  the 
child  in  the  form  of  an  absence  of  power  to  resist 
criminal  instincts  and  impulses."1  Of  9344  persons 
committed  to  the  Elmira  reformatory,  90.5  per 
cent,  were  between  sixteen  and  twenty-five  years  of 
age,  and  therefore  included  in  our  category.  Of  the 
total  10.8  per  cent,  had  an  insane  or  epileptic  an- 
cestry ;  46.8  per  cent,  a  more  or  less  clearly  traced 
drunken  ancestry ;  84  per  cent,  had  parents  with- 
out accumulations  ;  only  13.6  per  cent,  had  good 
homes.  Of  the  4303  homeless,  37.8  percent,  occu- 
pied furnished  rooms  in  cities  ;  22.8  per  cent,  were 
itinerants;  20. 8 per  cent,  tramps.  The  associations 
of  54.7  per  cent,  were  positively  bad,  and  of  43.1 
per  cent,  not  good;  91.3  per  cent,  were  in  good 
health,  but  31.3  per  cent,  of  a  low  or  coarse  quality  ; 
41.8  percent,  of  medium;  80.5  percent,  were  of  good 
mental  condition  ;  81.5  per  cent,  with  very  slight  or 
no  culture  ;  76.  i  per  cent,  had  either  no,  or  possibly 
a  little,  susceptibility  to  moral  impression  ;  and  71.9 
per  cent,  either  absolutely  no  moral  sense,  or  possi- 
bly some,  or  filial  affection,  sense  of  shame,  or  of 
personal  loss.' 

"  In  cases  where  reformatory  school  inmates  have  both  par- 
ents alive  I  find  that  in  nine  cases  out  of  ten  one  or  other  of 

1  Juvenile  Offenders,  pp.  88-110. 

8  Elmira  Reformatory  Year  Book,  1899. 


Juvenile  and  First  Offenders          249 


these  parents  is  distinctly  disreputable.  Only  six  per  cent, 
of  the  children  in  industrial  schools  had  homes  which  were 
morally  fit  for  a  child  to  live  in."  '  "  Not  more  than  fifteen  per 
cent,  of  the  juveniles  committed  to  reformatory  and  industrial 
schools  come  from  homes  in  which  they  are  fairly  housed, 
fairly  fed,  and  fairly  clad."* 

These  statistics,  which  are  indicative  of  conditions 
prevailing  in  all  civilized  countries,  make  it  evident 
that  all  juvenile  criminality  is  due  either  to  incapa- 
city for  honest  self-support  from  physical  or  mental 
defects,  or  to  moral  depravity  resulting  from  cor- 
rupting youthful  circumstances  and  defective  train- 
ing. The  juvenile  offender  is  the  joint  product  of 
bad  heredity  and  bad  environment.  Probably  ninety 
per  cent,  of  them  are  morally  depraved,  and  when  at 
liberty  are  surrounded  by  depraving  associations. 
Unless  these  conditions  can  be  changed,  the  culprit 
is  certain  to  become  an  habitual  criminal,  more  ex- 
pert, daring,  and  dangerous  as  he  becomes  more  ex- 
perienced. The  ten  per  cent,  of  normal  character 
and  environment  who  have  probably  avoided  minor 
crimes  and  been  convicted  of  those  which  are  fla- 
grant, are  on  the  other  hand  in  danger  of  corrup- 
tion into  habitual  criminality  by  imprisonment  and 
association  with  depraved  criminals. 

The  social  problem  of  the  treatment  of  juvenile 
and  first  offenders  is  as  complex  as  it  is  important. 
The  only  satisfactory  solution  of  it  is  to  prevent 
them  becoming  habitual  criminals.  Penological 
science  lays  down  these  general  rules  for  the  work- 
ing out  of  this  solution  : 

1  Juvenile  Offenders,  Morrison,  p.  150.  *  Ibid.,  p.  162. 


250  The  Science  of  Penology 


First :  Imprisonment  of  juvenile  and  first 
offenders  is  absolutely  prohibited,  except  as  a  last  re- 
sort for  those  convicted  of  flagrant  crimes.  The 
reasons  for  this  rule  are  these  :  Neither  society  nor 
the  offender  receives  any  advantage,  but  rather 
suffers  a  positive  injury  from  imprisonment.  It 
breaks  down  the  self-respect  of  the  convict,  and 
inflicts  a  life-long  stigma  on  his  character.  Its  de- 
terrent power  is  destroyed  by  familiarity  with  its  re- 
lief from  care,  comfortable  support,  and  congenial 
associations.  It  impairs  the  physical  and  mental 
as  well  as  the  moral  health  of  the  prisoner,  and  his 
ability  to  earn  an  honest  living  when  released.  It  is 
a  frightful  cruelty  and  injustice  to  the  innocent  and 
the  novice  in  crime  ;  and  neither  a  punishment  nor 
a  benefit  to  the  guilty. 

Second  :  When  a  limited  imprisonmeut  is  ne- 
cessary it  must  be  by  entirely  separate  confinement. 
Whatever  difference  of  opinion  may  exist  concern- 
ing the  respective  advantages  of  the  separate  and 
congregate  systems  of  confinement  for  other  con- 
victs, penologists  and  sociologists  are  generally 
agreed  that  juvenile  and  first  offenders  should 
never  be  exposed  to  the  contamination  of  other 
criminals  in  prisons. 

Third :  Juvenile  and  first  offenders  should 
never  be  confined  in  jail  with  other  prisoners  while 
awaiting  trial,  or  under  remand.  Complete  isolation 
is  indispensable  to  preserve  the  innocent  from  con- 
tamination, physical,  mental,  and  moral,  and  to  al- 
low the  guilty  solitude  for  reflection  and  repentance. 


Juvenile  and  First  Offenders          251 


It  enables  the  warden  to  observe  and  detect  disease 
or  insanity ;  and  protects  the  prisoner  from  the 
serious  evil  of  future  recognition  by  other  prisoners 
after  his  discharge.  M.  Laloue,  Inspector-General 
of  prisons  in  France,  stated  before  a  commission 

"that  with*our  existing  system,  twenty-four  hours'  imprison- 
ment suffices  under  certain  circumstances  to  ruin  a  man.  I  do 
not  exaggerate.  I  say  what  I  have  seen.  The  prisoner  meets 
a  corrupt  recidivist  ;  they  appoint  a  rendezvous  outside,  and 
that  man  is  lost."  ' 

All  intelligent  penologists  agree  upon  this  rule. 

Fourth  :  That  the  primary  and  supreme  object 
of  the  sentence  of  a  convicted  juvenile  or  first  of- 
fender is  his  rescue  from  a  criminal  life.  This  is 
equally  essential  for  the  protection  of  society  and 
the  salvation  of  the  convict.  Both  punishment 
and  restitution  are  secondary  and  incidental  con- 
siderations for  them,  chiefly  useful  as  they  contrib- 
ute to  these  objects. 

Fifth :  That  the  character  and  circumstances  of 
the  accused  should  be  carefully  investigated,  and  al- 
lowed full  weight  and  influence  in  determining 
whether  the  juvenile  or  first  offender  should  be  tried 
and  convicted  or  not,  and  in  fixing  the  kind  of  sen- 
tence which  should  be  imposed  upon  conviction. 
A  conviction  of  crime,  especially  if  it  is  of  a  disrepu- 
table or  dishonest  nature,  may  inflict  an  indelible 
stain  upon  a  youth,  and  seriously  impair  his  future 
success  in  life.  Such  an  injury  ought  never  to  be 
inflicted  for  minor  or  accidental  offenses.  These 

1  Testimony  of  Dr.  J.  T.  Gilmour,  Warden  Central  Prison,  Canada. 


252  The  Science  of  Penology 


are  often  the  result  of  immaturity  and  evil  associa- 
tions, rather  than  deep-seated  criminal  propensities. 
The  law  will  be  more  efficient  by  simply  displaying 
its  power  and  certainty ;  by  showing  a  disposition 
toward  mercy,  and  a  desire  for  correction  rather 
than  vengeance.  <• 

In  every  court  there  should  be  a  probation  of- 
ficer— an  official  intermediary  between  the  judge 
and  the  prisoner,  to  act  as  the  confidential  friend 
and  adviser  of  the  accused  and  the  trusted  agent 
of  the  law.  He  should  be  a  man  of  intelligence, 
good  judgment,  kindly  sympathy,  and  firm  will, 
who  should  carefully  investigate  the  personal  his- 
tory of  every  one  accused  of  crime  before  his  trial. 
Upon  his  report  and  recommendation  the  judge 
should  decide,  first,  whether  or  not  it  will  be  neces- 
sary to  proceed  to  a  trial  and  conviction ;  second, 
concerning  the  kind  of  sentence  which  should  be 
imposed  for  guilt.  If  it  is  consistent  with  the  pub- 
lic safety  and  there  is  hope  for  the  correction  of 
the  first  offender,  he  should  be  strongly,  but  kindly, 
admonished  by  the  court  and  dismissed  without 
trial,  under  the  temporary  surveillance  of  this  of- 
ficer. It  will  then  devolve  upon  the  probation  of- 
ficer to  deliver  the  erring  from  his  corrupting 
associations,  to  secure  him  honorable  employment, 
and  to  assist  him  by  good  counsel  to  lead  an  hon- 
est life. 

"  For  experience  shows  conclusively  that  a  paternal  solici- 
tude, which  is  invested  with  the  dignity  of  the  law  and  the 
authority  of  the  courts,  often  has  weight  and  influence  where 


Probation  and  Parole  253 


the  ordinary  and  unofficial  forms  of  moral  suasion  are  of  no 
avail."  ' 

In  cases  where  more  severe  measures  are  neces- 
sary, a  trial  and  conviction  may  be  permitted.  If 
the  legal  maximum  penalty  be  two  years  or  less  of 
imprisonment  for  the  crime  committed,  a  fine  should 
be  imposed  instead,  which  the  culprit  should  be 
allowed  to  earn  by  work,  if  necessary,  and  pay  in 
installments  through  the  probation  officer.  The 
sentence  of  imprisonment  should  be  suspended 
during  good  behavior,  if  the  fine  is  paid ;  the  pro- 
bation officer  being  required  to  report  monthly 
concerning  the  behavior  of  the  prisoner,  and  to 
return  him  to  the  custody  of  the  court  for  delin- 
quency. When  the  fine  is  liquidated,  upon  a  favor- 
able report  by  the  officer,  the  prisoner  should  be 
discharged.  This  method  of  procedure  will  keep 
out  of  prison  very  many  who  ought  not  to  go  there, 
reduce  the  prison  population  and  the  cost  of  main- 
taining prisons,  materially  increase  the  revenue 
from  fines  and  the  social  compensation  of  crimi- 
nals, and  relieve  the  district  attorney  of  much  of 
the  responsibility  of  deciding  upon  the  course  of 
action  required  in  these  cases. 

The  sexual  crimes  of  rape,  incest,  adultery,  and 
fornication  with  imbeciles,  insane,  drugged  or 
drunken  females,  and  girls  under  the  age  of  con- 
sent, indicating  great  moral  depravity,  should  be 
punished,  like  the  same  crimes  committed  by  other 
criminals,  by  castration  and  an  indeterminate 

1  City  of  Boston,  Document  158,  1899. 


254  The  Science  of  Penology 


sentence  to  a  reformatory  with  a  minimum  limit 
of  a  five-year  course. 

For  felonies  and  crimes,  the  legal  maximum  pen- 
alties for  which  are  fixed  between  two  years  and 
life  imprisonment,  juvenile  and  first  offenders 
should  be  sentenced  to  the  reformatory  under  the 
indeterminate  sentence,  with  a  minimum  course  of 
five  years,  for  the  reasons  given  in  the  chapter  on 
reformation. 

The  partially  insane,  the  imbecile,  the  weak- 
minded,  and  the  epileptic  should  be  committed  to 
their  appropriate  asylums  ;  the  physically  deformed, 
diseased,  and  incapable  to  the  almshouse.  It  is  an 
unjustifiable  cruelty  to  condemn  those  who  have 
been  forced  into  crime  by  their  infirmities  and  mis- 
fortune, the  result  often  of  preceding  social  error 
and  neglect,  to  the  hardship,  disgrace,  and  pun- 
ishment of  penal  institutions.  For  such  heinous 
crimes  as  require  that  the  perpetrator  be  confined 
for  life,  there  should  be  no  mitigation  of  the  sen- 
tence of  the  juvenile  or  first  offender.  Such  de- 
pravity of  character  is  too  dangerous  to  be  at 
large. 

The  probation  system  of  dealing  with  criminals, 
and  especially  with  juvenile  and  first  offenders,  is 
the  latest  and  most  beneficent  product  of  penolog. 
ical  science.  Connected  and  combined  with  the 
reformatory  treatment  of  convicts  in  confinement, 
and  their  discharge  on  parole  as  a  test  in  freedom, 
it  constitutes  a  rational,  scientific,  and  promising 
system  as  a  substitute  for  the  obsolete  and  useless 


Juvenile  and  First  Offenders          255 


plan  of  vindictive  penalties.  It  was  introduced 
into  the  legislation  of  Massachusetts  in  1891,  and 
has  since  been  adopted,  to  a  limited  extent,  by  the 
States  of  Vermont,  Rhode  Island,  Michigan,  Illi- 
nois, Ohio,  and  Minnesota.  Under  it  these  juve- 
nile and  petty  offenders  are  made  to  understand 
the  majesty  and  power  of  the  law,  and. at  the  same 
time  offered  another  opportunity  to  choose  be- 
tween freedom  and  the  prison.  They  have  an- 
other chance  at  reformation  by  strengthening  their 
wills  and  developing  the  power  of  self-control  under 
the  powerful  stimulus  of  the  friendly  assistance  of 
an  officer  of  the  law,  aided  by  the  most  effective 
deterrent  yet  devised  —  suspended  punishment;  or 
they  may  elect  personal  disgrace,  family  humilia- 
tion and  suffering,  and  social  suicide. 

The  State  of  Massachusetts  has  had  the  longest 
and  most  general,  although  still  incomplete,  ex- 
perience with  the  probation  system  of  any  State.  Its 
Prison  Commissioners  say  in  their  report  for  1899  : 

"  Wisely  administered,  too  much  cannot  be  said  in  commen- 
dation of  this  system,  which  has  for  its  object  the  prevention 
of  crime.  Experience  has  demonstrated  it  is  the  most  power- 
ful moral  influence  that  has  been  introduced  into  the  modern 
system  of  the  treatment  of  drunkards  and  criminals.  It  is  a 
source  of  vast  economy  to  the  State." 

During  the  year  ending  September  30,  1899, 
there  were  96,019  arrests  made  in  that  State,  of 
which  59,808  were  for  drunkenness  ;  and  of  these 
51,141  were  referred  to  the  probation  officers.  The 
statements  of  43,756  persons  were  found  to  be  true, 


256  *          The  Science  of  Penology 


7,001  untrue,  263  doubtful ;  23,255  cases  were  in- 
vestigated by  order  of  court,  and  3966  taken  on 
probation.  Cases  of  all  kinds  taken  on  probation 
numbered  5626.  Of  these,  1 208  were  persons  be- 
tween the  ages  of  fifteen  and  twenty-six  years  ;  viz., 
121  were  sixteen  years  of  age,  no  were  seventeen, 
98  were  eighteen,  106  were  nineteen,  98  were 
twenty,  131  were  twenty-one,  131  were  twenty-two, 
141  were  twenty-three,  132  were  twenty-four,  140 
over  twenty-five  years  of  age  ;  and  3822  were 
twenty-six  years  and  older.  There  were  592  of 
school  age, — fifteen  years  and  under.  Of  the  1 208 
juvenile  offenders,  i  was  taken  on  probation  for 
adultery  ;  48  for  assault  and  battery  ;  i  for  violat- 
ing bicycle  law  ;  i  for  breach  of  the  peace ;  1 3  for 
breaking  and  entering ;  2,  breaking  glass  ;  32,  violat- 
ing ordinance;  52,  common  night-walkers;  2,  dis- 
orderly conduct ;  i,  disturbing  religious  meeting; 
39,  disturbing  the  peace  ;  684,  drunkenness  ;  5,  em- 
bezzlement;  3,  false  pretences;  i, fast  driving ;  5, 
fornication;  i,  gaming,  being  present  at;  i,  violat- 
ing health  laws;  61,  idle  and  disorderly;  108,  larceny; 
2,  lewd  and  lascivious  cohabitation;  i,  violat- 
ing liquor  laws ;  i,  liquor  nuisance ;  i,  violating 
Lords  Day  ;  17,  malicious  mischief;  25,  neglect  of 
family;  i,  violating  park  laws;  2,  playing  ball in 
street ;  i,  practising  dentistry  without  license ;  i, 
profanity  ;  2,  receiving  stolen  goods  ;  7,  obstructing 
sidewalks  ;  7 '2,  stubbornness  ;  2,  threats  ;  4,  throwing 
missiles;  9,  trespass;  i,  unlawful  taking  ;  8,  vagrants  ; 
2,  walking  on  railroad.  In  all  there  were  39 


Juvenile  and  First  Offenders          257 


different  offenses,  25  of  which  (printed  in  italics)  do 
not  necessarily  imply  a  criminal  disposition,  al- 
though necessitating  the  arrest  of  273  persons  who 
would  doubtless  have  been  made  criminals  by  im- 
prisonment. The  variety  of  crimes  indicates  the 
possibly  wide  application  of  the  system. 

The  total  number  of  sentences  imposed  in  all 
courts  was  56,817.  The  total  number  taken  on 
probation  was  therefore  only  about  ten  per  cent,  of 
those  sentenced  ;  *  so  that  it  appears  that  the  courts 
even  in  Massachusetts  do  not  yet  fully  make  use  of 
its  advantages.  The  recidivists  committed  to  all 
prisons  during  the  year  numbered  14,810,  47  of 
whom  had  been  previously  committed"  more  than 
50  times  each.  The  10,383  whose  previous  com- 
mitments were  given  up  to  6  each,  had  been  com- 
mitted 35,185  times  ;  3435  had  been  committed  from 
6  to  15  times;  averaging  them  at  10  times  each 
would  make  34,350  more  ;  767  from  16  to  30 
time,  averaged  at  23  times,  would  be  17,641 
commitments ;  the  1 78  given  as  having  been  pre- 
viously committed  from  31  to  50  times,  averaged  at 
40  times,  would  make  7140;  and  47  averaged  at 
60  times  yields  2820;  a  total  number  of  97,136 
commitments.  At  the  average  cost  of  criminality  as 
computed  by  the  Prison  Association  for  i898,2 
which  was  $161.25  per  commitment,  these  14,810 
criminals  had  already  cost  the  State  $15,663,182,  or 
$1057  apiece. 

1  Report  of  Commissioners  of  Prisons,  1899. 
2  Massachusetts  Prison  Association  Bulletin,  No.  12. 
17 


258  The  Science  of  Penology 

There  were  4323  who  paid  fines  and  costs  aver- 
aging $8. 15  apiece.  But  16,075  were  committed  to 
jails  for  non-payment  of  fines  and  costs  who  doubt- 
less could  have  been  made  to  work  out  these 
charges  under  the  probation  officer.  At  the  average 
rate  of  those  who  paid,  this  would  have  added  to 
the  public  treasury  $147,086.  Assuming  that  they 
were  held  on  an  average  of  thirty  days  each,  their 
maintenance,  at  thirty  cents  a  day,  cost  the  public 
$144,675.  There  were  also  7413  committed  for  less 
than  six  months  each.  Assuming  that  ninety  per 
cent,  of  these  could  have  been  taken  on  probation 
to  work  out  fines  averaging  $20  each,  the  6672 
would  have  paid  in  fines  $133,440;  and  if  their 
confinement  averaged  ninety  days  each,  it  cost 
the  public  $180,144  for  maintenance  alone.  The 
public  would  therefore  have  made  a  direct  and 
immediate  profit,  during  the  first  year,  of  the  sum 
of  $605,345  by  the  application  of  the  probation 
system  to  these  cases ;  besides  the  incalculable 
future  advantage  derivable  from  keeping  22,747 
persons  out  of  the  criminal  factory  during  the  year. 
There  is  no  law  of  penological  science  more  abso- 
lute and  inflexible  than  this,  that  short  terms  of  im- 
prisonment in  association  with  the  depraved  herds 
found*  in  jails  and  houses  of  correction  transform  a 
first  offender  into  a  habitual  or  professional  criminal. 
Whatever  proportion  of  these  might  have  been 
saved  by  probationary  treatment,  it  is  morally  cer- 
tain that  nearly  all  were  ruined  by  imprisonment. 
The  experience  of  Massachusetts  in  this  respect 


Juvenile  and  First  Offenders          259 


indicates  the  immeasurable  advantages  which  would 
accrue  from  the  adoption  of  the  probation  system  in 
all  our  States. 

Of  the  arrests  for  drunkenness,  which  were  62.28 
per  cent,  of  all  arrests,  only  6.63  per  cent,  were 
taken  on  probation,  and  57.38  per  cent,  in  all  were 
sentenced.  A  few  less  than  30  per  cent,  of  those 
arrested  were  committed  for  non-payment  of  fines 
and  costs,  and  for  less  than  six  months.  Probably 
50  per  cent,  of  those  arrested  would  have  been 
better  treated  on  probation. 

Of  those  arrested  for  all  other  offenses  (37.72 
per  cent,  of  the  total  arrested)  there  were  only  4.58 
per  cent,  taken  on  probation  ;  of  the  62.  i  per  cent, 
committed,  16.77  Per  cent,  were  sent  to  prison  for 
non-payment  of  fines  and  costs,  and  for  less  than 
six  months.  Probably  25  per  cent,  of  those  com- 
mitted, at  least,  and  50  per  cent,  of  those  arrested 
who  were  not  committed,  would  have  been  more 
wisely  dealt  with  on  probation.  This  would  have 
cared  for  about  32  per  cent,  of  all  arrested  on  other 
charges  than  drunkenness,  instead  of  the  4.58  per 
cent,  actually  taken  on  probation. 

Certainly  one  half  of  all  persons  arrested  for 
drunkenness  and  one  third  of  all  those  arrested  for 
other  crimes,  including  most  of  the  juvenile  and 
first  offenders,  should,  as  a  general  rule,  be  given 
another  chance  on  probation  under  a  wise  and  care- 
ful officer  before  the  terrible  risk  of  prison  is  im- 
posed upon  them.  The  probation  system  is  not 
an  experiment.  Its  general  adoption  would  stop 


26o  The  Science  of  Penology 


the  growth  of  the  criminal  class,  depopulate  our 
jails  and  prisons,  restore  thousands  of  youths  to 
honesty  and  usefulness,  and  save  the  people  mil- 
lions of  more  than  wasted  money  every  year.  The 
State  can  no  longer  afford  to  neglect  this  great 
social  economy. 

The  subject  of  the  parole  of  discharged  prisoners 
is  naturally  connected  with  probation  by  coinci- 
dence of  purpose  (which  is  the  prevention  of  re- 
lapse) and  the  similarity  of  the  methods  employed. 
"  Parole  is  the  post-penitentiary,  as  probation  is 
the  pre-penitentiary  treatment  of  criminals."  Pro- 
bation is  intended  to  avert  the  threatened  disease 
of  criminality  when  symptoms  have  appeared. 
Parole  is  intended  to  prevent  a  relapse  during  con- 
valescence, after  cure.  One  is  quite  as  necessary 
and  efficacious  as  the  other.  When  a  prisoner  is 
first  restored  to  liberty  the  rebound  of  his  nature 
toward  the  indulgences  which  have  been  so  long 
denied  him,  the  solicitations  of  corrupt  companions 
who  have  been  waiting  for  him,  the  cold  shoulder 
which  the  world  turns  toward  the  ex-convict,  un- 
duly magnified  by  his  self-conscious  abasement, 
the  great  difficulty  or  impossibility  of  securing  hon- 
orable employment  unaided,  the  lack  of  useful 
friends,  the  strange  circumstances  of  freedom,  and 
the  necessity  of  independent  self-support,  all  com- 
bine to  neutralize  the  reformative  influences  which 
may  have  been  used,  to  break  down  his  good  reso- 
lutions and  drive  him  back  into  criminality.  The 
first  days  of  freedom  are  the  critical  period  of 


Juvenile  and  First  Offenders          261 


every  discharged  prisoner's  life.  If  he  is  simply 
given  a  suit  of  clothes  and  shoved  out  of  the  prison 
door  with  a  few  dollars  in  his  pocket,  in  nine  cases 
out  of  ten  an  old  pal  meets  him  with  a  criminal 
enterprise  ready  planned ;  a  brothel  is  his  first  re- 
sort ;  a  spree  consumes  his  money  ;  a  crime  is  com- 
mitted ;  and  he  soon  finds  himself  again  under  lock 
and  key,  a  recidivist. 

In  recognition  of  these  conditions  many  philan- 
thropic societies  have  been  formed  for  the  assist- 
ance of  discharged  prisoners ;  the  first  being  the 
Pennsylvania  Prison  Society,  founded  in  1787,  in 
Philadelphia.  They  now  exist  in  many  States  in 
America,  and  in  Europe.  Dr.  Barrows,  United 
States  Commissioner  to  the  International  Prison 
Congress  of  Paris  in  1900,  reported  to  the  National 
Prison  Congress  of  that  year  that  there  were  101 
such  voluntary  societies  in  France.  Mrs.  Ballington 
Booth  has  devoted  much  of  her  marvellous  powers 
for  several  years  to  this  great  work ;  and  reports 
that  at  least  seventy-five  per  cent,  of  those  she  has 
aided  are  living  honest  lives.  But  private  charity 
and  unofficial  Christianity  cannot,  and  ought  not  to 
be  depended  upon  to  do,  fully  and  regularly,  what  it 
is  the  manifest  duty  of  the  State  to  perform.  The 
State  has  produced  by  imprisonment  most  of  the 
adverse  conditions  which  endanger  the  discharged 
prisoner  ;  it  is  incumbent  upon  the  State,  therefore, 
to  protect  and  assist  those  it  has  rendered  helpless 
until  they  are  rehabilitated.  As  it  is  its  exclusive 
function  to  protect  society  from  criminals,  and  to 


262  The  Science  of  Penology 


prevent  those  identified  from  continuing  in  crimi- 
nality, so  it  is  very  greatly  for  its  economic  interest 
to  establish  the  ex-convict  in  honest  self-supporting 
life,  in  order  that  he  shall  not  become  habit- 
ually criminal.  It  has  in  some  cases  accepted  this 
responsibility  in  connection  with  the  prisoners 
discharged  from  its  reformatory  prisons.  The  indi- 
vidual rights  of  the  incapacitated  ex-convict,  the 
protection  of  society,  and  economical  administration 
all  require  that  it  shall  assume  this  responsibility  for 
every  prisoner  let  loose.  It  is  a  positive  man- 
date of  our  science  that  the  State  shall  continue 
its  supervision  of  all  discharged  prisoners  until 
they  have  proved  their  ability  to  live  harmlessly  at 
liberty. 

Upon  the  completion  of  a  prisoner's  term  of  con- 
finement he  should  be  delivered  by  the  prison 
warden  into  the  care  of  a  probation  officer ;  who 
should  secure  employment  for  him  ;  provide  him 
with  tools  if  necessary  ;  and  assist  him  for  at  least  a 
year,  by  advice  and  otherwise,  to  maintain  himself 
honestly.  A  fund  sufficient  for  this  purpose  should 
be  at  the  disposal  of  the  probation  officer.  This  can 
be  supplied  from  the  earnings  of  prisoners.  The 
probation  officers  should  report  monthly  to  the  re- 
spective wardens,  concerning  the  conduct  and  em- 
ployment of  all  in  their  charge  ;  and  have  authority 
to  return  delinquents  to  prison  to  serve  under  an 
indeterminate  sentence. 

The  conditions  of  parole  release  of  a  prisoner  in 
Massachusetts  are  these: 


Juvenile  and  First  Offenders          263 


"  i.  He  shall  not  violate  any  law  of  this  Commonwealth. 

"  2.  He  shall  not  lead  an  idle  or  dissolute  life. 

"  3.  He  shall  not  visit  any  barroom,  gambling  house,  or  house 
of  ill  fame,  or  associate  with  persons  of  notoriously  bad 
character. 

"  4.  He  shall  not  use  intoxicating  liquors. 

"  5.  He  shall  report  to  the  Commissioner  of  Prisons  by  letter 
or  in  person  once  in  each  month. 

"  A  returned  prisoner  becomes  subject  to  the  same  rules  as 
one  recommitted  by  the  courts,  and  is  required  to  serve  a 
considerably  longer  time  than  under  his  first  commitment."  * 

Such  a  law,  generally  enforced,  would  greatly  re- 
lieve society  from  its  apprehension  of  the  ravages  of 
returning  ex-convicts,  and  from  much  of  the  cost  of 
habitual  criminals.  Experience  proves  that  such 
surveillance  is  not  expensive,  or  difficult.  Identity 
is  easily  preserved  by  the  Bertillon  method. 

Upon  the  three  systems  of  probation,  reforma- 
tion, and  parole,  society  must  rely  for  its  protection 
from  juvenile  and  first  offenders  especially,  and  for 
the  restriction  and  reduction  of  the  criminal  class 
which  now  afflicts  it. 

1  Report  of  Commissioners  of  Prisons  of  Massachusetts,  1900,  p.  104. 


CHAPTER  XIV. 

PRISON    LABOR. 

The  Problem  Stated — Public  and  Legislative  Discussions — An  Insignificant 
Item  in  Industrial  Economics — Prisoners  should  Earn  as  Much  as  Pos- 
sible toward  their  Maintenance — Concentration  of  Prison  Labor  on  a 
Few  Products  Objectionable — An  Important  Reformatory  and  Penal 
Consideration — Necessary  for  Discipline — High  Concern  to  Prisoners' 
Health  and  Training — Essential  Element  of  Reformation — Obligation 
of  State  to  Employ  Prisoners — The  Fundamental  Principle — How 
Tried  and  Failed — Conclusions  of  National  Industrial  Commission, 
1900— Conclusions  Discussed — Restriction  of  Hours  of  Labor — Pro- 
hibition of  Machinery — Boycott  of  Prison-made  Goods — "  State's  Use" 
Plan — Labor  in  Penitentiaries — Life  Convicts  in  Public  Works — Labor 
in  Jails  and  Reformatories — In  Industrial  Schools  and  Asylums — 
Number  of  Jail  Prisoners  in  Idleness  and  Results — Working  out  Fines 
as  a  Remedy — Local  Public  Work  for  Short-term  Prisoners — General 
Scientific  Scheme  of  Prison  Labor — Social  Duty  of  Employing  the 
Discharged  Prisoner. 

"TJARD  labor"  has  from  very  early  times  been 
A  1  a  part  of  the  penalty  imposed  upon  convicts. 
Imprisonment  with  hard  labor  for  a  definite  term 
is  still  the  sentence  specified  in  most  of  our  crim- 
inal codes  as  the  legal  punishment  for  felonies. 
Useless  punitive  labor  of  the  "  crank"  and  "  tread- 
mill" kind,  however,  has  long  been  abandoned 
along  with  other  cruelties  as  inhuman  and  without 
social  value.  Experience  has  proved  also  that  en- 
forced idleness  in  confinement  is  as  unreasonable 
and  cruel  as  torture.  It  destroys  the  physical, 

264 


Prison  Labor  265 


mental,  and  moral  health,  induces  disease  and 
insanity,  incapacitates  the  prisoner  for  honest  self- 
support  when  liberated,  and  makes  him  a  life  bur- 
den or  enemy  of  society.  As  humane  principles 
began  to  control  the  treatment  of  prisoners  in  con- 
finement it  became  manifest  that  it  was  unjust  and 
unfair  to  compel  the  honest  people  whom  the  crim- 
inal had  wronged  to  support  him  in  comfortable 
idleness  by  their  own  labor.  Idle  convicts  are  now 
recognized  by  intelligent  people  as  contrary  to  law, 
reason,  nature,  and  social  economy.  How  to  make 
them  contribute  the  most  possible  toward  their  own 
maintenance,  and  best  fit  them  for  honest  self-sup- 
port when  liberated,  with  the  least  interference 
with  wages  and  the  prices  of  labor  and  products  of 
free  industry,  is  a  question  which  has  been  much 
studied  and  discussed  in  the  last  twenty-five  years. 
Labor  agitators,  demagogues,  and  politicians 
catering  to  the  labor  vote,  have  attracted  the  public 
attention  to  this  question,  and  caused  the  enact- 
ment of  various  restrictive  measures  which  were  not 
intelligently  considered  and  have  proved  to  be 
injurious  to  both  the  public  and  the  prisoner. 
Legislative  commissions  in  several  of  the  States, 
notably  in  Massachusetts,  New  York  in  1898,  and 
Pennsylvania  in  1897;  the  United  States  Depart- 
ment of  Labor,  and  the  Congressional  Industrial 
Commission  in  1900,  have  made  exhaustive  invest- 
igations and  reports  on  the  subject  of  prison  labor  ; 
penologists  and  sociologists  have  written  much  on 
It,  so  that  some  facts  have  been  made  known,  some 


266  The  Science  of  Penology 


disputed  questions  about  it  settled,  and  some  gen- 
eral principles  established.  A  better  public  un- 
derstanding of  the  subject  makes  possible  more 
beneficial  legislation  than  has  heretofore  been  had. 
In  the  first  place,  prison  labor  has  been  shown  to 
be  a  much  less  important  item  in  our  industrial 
economics  than  it  was  supposed  to  be.  The  United 
States  Commissioner  of  Labor,  in  his  report  for 
1886,  which  gives  the  latest  general  statistics  for 
the  whole  country  concerning  convict  labor,  says  : 

"  The  competition  arising  from  the  employment  of  convicts, 
so  far  as  the  whole  country  is  concerned,  would  not  of  itself  con- 
stitute a  question  worthy  of  serious  consideration.  The  pro- 
ducts of  the  prisons  were  then  but  fifty-four  one  hundredths 
of  one  per  cent,  of  the  total  merchandise  products  of  the 
country.  The  whole  prison  population  of  those  institutions  in 
which  productive  labor  was  then  carried  on  was  but  one  in  a 
thousand  of  the  population  of  the  country,  and  those  engaged 
in  convict  productive  labor  but  one  in  three  hundred  of  those 
engaged  in  free  mechanical  labor.  The  total  value  of  the 
labor  expended  by  convicts  in  the  State  penitentiaries  and 
prisons  of  like  grade  at  that  time  did  not  much  exceed  $2,- 
500,000,  or  a  little  more  than  one  tenth  of  one  per  cent,  of 
the  total  wages  paid  in  the  manufacturing  industries  of  the 
country  in  1890." 

Dr.  Carroll  D.  Wright,  the  United  States  Com- 
missioner, stated  in  the  able  and  exhaustive  treatise 
on  this  subject  which  he  read  before  the  National 
Prison  Association  in  1899  : 

"  Here  and  there  prison  labor  did  affect  wages  and  prices, 
but  in  all  the  investigations  which  I  have  made  on  this  subject 
during  the  last  twenty  years  I  have  never  found  much  influence 


Prison  Labor  267 


in  either  direction  growing  out  of  the  employment  of 
prisoners."  * 

The  very  small  proportion  in  numbers  or  value 
of  product  which  it  bears  to  the  totals  in  the 
country  renders  it  impossible  for  it  to  exert  any 
appreciable  influence  in  these  directions.  It  has 
become  manifest  that  the  importance  of  the  inter- 
ference of  prison  labor  with  free  labor  has  been 
greatly  overestimated.  The  labor  of  a  man  in 
prison  certainly  cannot  be  more  competitive  than 
if  he  were  supporting  himself  honestly  by  it 
outside  in  freedom.  In  fact,  the  investigations  have 
proved  that  all  prisons  as  a  whole  are  run  at  a  loss 
to  the  State,  and  under  the  best  systems  heretofore 
in  use  the  return  for  labor  has  not  been  more  than 
from  fifty  to  seventy-five  per  cent,  of  their  cost.2 
"The  total  income  from  labor  in  all  the  United 
States  prisons  in  1886  was  but  thirty-two  per  cent, 
of  the  total  expense."3  "  Free  workmen  produce 
nearly  three  times  as  much  per  day  as  the  convict 
on  a  general  average."4 

Although  the  prisoner  cannot  earn  his  entire 
support,  true  social  economy  requires  that  he  should 
be  made  to  contribute  as  much  as  he  can  toward  it 
by  his  own  labor,  under  the  most  advantageous  cir- 
cumstances and  with  the  best  facilities  which  can 

1  Report  of  National  Prison  Association,  1899,  P-  2I3- 
*  Idem,  p.  217. 

3  Report  of  Industrial  Commission  on  Prison  Labor,  1900,  p.  6l. 

4  Report  of  National  Prison  Association,  1899,  P-  ^3-     Dr.  Wright's  paper 
gives  a  full  resume  of  the  status  of  the  subject  in  this  country  at  that  time, 
with  his  conclusions. 


268  The  Science  of  Penology 


be  provided,  rather  than  that  honest  outside  labor 
should  be  burdened  with  the  whole  of  it.  Never- 
theless, the  hostile  legislation  largely  induced  by  the 
efforts  of  labor  unions,  reduced  the  value  of  goods 
produced  or  work  done  in  the  prisons  of  the  country 
from  $24,271,078.39  in  1885,  to  $19,042,472.33  in 
1895,  a  decrease  of  21.5  per  cent.  Thus  the  pro- 
duction of  $5,228,606  worth  of  goods  was  shifted 
from  the  shoulders  t>f  those  who  ought  to  have  done 
the  work  to  those  of  outside  workmen.1  This  is 
not  good  public  policy  or  wise  statesmanship. 
Scientific  political  economy  and  penology  both 
plainly  demand  that  criminals  in  confinement  shall 
be  made  to  reduce  the  cost  of  their  maintenance 
to  the  greatest  possible  extent  by  their  profitable 
employment. 

The  only  valid  objection  which  the  free  laborer 
can  make  against  prison  labor  arises  when  the  labor 
of  a  large  number  of  convicts  is  concentrated  upon 
a  single  industry,  the  product  of  which  has  a  limited 
market.  That  there  is  a  possibility  of  serious  and 
injurious  competition  under  such  circumstances 
was  demonstrated  by  the  experience  of  the  cooper- 
age trade  in  the  West,  when  most  of  the  cooperage 
for  the  Chicago  and  neighboring  packing  markets 
was  produced  in  the  Joliet  and  Michigan  City  peni- 
tentiaries. In  ten  years  there  was  a  falling  off  of 
33.7  per  cent,  in  the  price  of  packages  and  a  re- 
duction of  30  per  cent,  in  the  average  wages  of  out- 
side coopers,  who  fell  to  the  rank  of  day  laborers, 

1  Report  of  Industrial  Commission  on  Prison  Labor,  7900,  p.  9. 


Prison  Labor  269 


while  the  market  increased  129  per  cent1  Such  a 
concentration  of  prison  labor  is  equally  objection- 
able on  account  of  its  limitation  of  the  educational 
and  reformatory  advantages  of  the  prisoner.  It  is 
therefore  prohibited  by  every  consideration  of  pub- 
lic policy,  except  pecuniary  profit,  which  is  of 
secondary  weight  in  the  decision.  This  objection 
is  entirely  removed  by  a  proper  diversity  of  em- 
ployment, which  also  insures  the  best  industrial 
training  to  the  prisoners. 

But  beyond  its  directly  economic  relations  with 
outside  labor,  prison  labor  has  a  social  importance 
which  entitles  it  to  all  the  consideration  it  has  re- 
ceived, or  that  can  be  given  to  it.  It  is  a  potent 
agency  in  the  reduction  of  crime  and  of  the  criminal 
class.  It  is  the  duty  of  the  State  to  govern  and 
control  all  its  reformatory  and  penal  institutions, 
and  their  convicts  ;  to  so  manage  these  as  to  pre- 
vent, as  far  as  possible,  the  continuance  of  prison- 
ers in  criminal  depredations,  to  reduce  the  public 
expense  for  their  confinement  to  the  smallest  cost, 
and  to  avoid  harmful  concentration  of  their  labor. 
The  reformation  of  convicts  is  well-nigh  impossible 
unless  they  are  employed  at  productive  labor.  The 
law  is  not  executed  by  enforced  idleness.  Its  de- 
terrent effect  upon  the  indolent  and  depraved  at 
liberty  is  destroyed  ;  its  punishment  is  transformed, 
in  the  estimation  of  those  whom  it  is  intended  to 
restrain,  into  a  reward  ;  its  execution  perverted 

1  Report  of  United  States  Industrial  Commission,  on  Prison  Labor,  IQOO, 
p.  36. 


270  The  Science  of  Penology 


from  the  correction  to  the  corruption  of  its  victims 
by  the  mischiefs  of  idleness ;  and  the  whole  object 
of  society  in  its  criminal  codes  defeated  if  its 
prisoners  are  not  compelled  to  work,  to  work  hard, 
and  profitably.  These  statements  no  longer  need 
the  support  of  argument ;  nor  does  the  statement 
that  a  rational  economy  of  maintenance  cannot  be 
secured  without  the  productive  employment  of  the 
prisoner.  Constant  experience  has  likewise  de- 
monstrated that  a  proper  control  and  wholesome 
discipline  of  the  criminal  in  confinement  is  greatly 
facilitated  by  hard  work,  if  it  be  manifestly  useful 
work.  It  is  therefore  a  material  aid  in  the  manage- 
ment of  criminals.  Continued  idleness,  moreover, 
destroys  the  health,  induces  insanity  and  depravity, 
and  completely  incapacitates  the  prisoner  for  honest 
living.  What  has  been  shown  to  be  an  advantage 
to  society  thus  becomes  its  absolute  duty  to  its 
prisoners.  For,  unless  we  accept  the  repugnant 
doctrine  of  extinction  as  the  cure  of  criminality,  it 
is  not  to  be  tolerated  that  the  State  shall,  by  the 
manner  in  which  it  executes  sentences,  augment 
their  severity  up  to  the  point  of  what  is  in  effect 
capital  punishment. 

The  question  is  of  the  highest  concern  also  to  the 
prisoner.  Useful  labor  is  an  essential  sanitary 
measure,  to  which  he  is  as  justly  entitled  as  he  is  to 
wholesome  food  and  drink,  pure  air  to  breath, 
sufficient  and  proper  clothing,  protection  from  ex- 
tremes of  heat  and  cold,  contagion,  disease,  all  un- 
neccessary  suffering,  and  cruelty.  Over  seventy  per 


Prison  Labor  271 


cent,  of  the  9344  prisoners  who  were  committed  to 
the  Elmira  reformatory  had  been  employed  at 
manual  labor,  fifty-five  and  seven-tenths  per  cent, 
as  common  laborers.  It  is  probable  that  at  least 
eighty-five  per  cent,  of  all  prisoners  in  all  prisons 
have  been  more  or  less  less  accustomed  to  physical 
rather  than  other  labor  before  incarceration,  and 
that  they  will  be  obliged  to  depend  upon  manual 
labor  for  support  when  released.  The  maintenance 
of  the  physical  health  and  strength  of  all  these  is 
almost  entirely  dependent  upon  a  continuation  of 
the  exercise  of  their  muscles  and  faculties  in  useful 
labor  during  confinement.  This  is  also  quite  as 
useful  to  the  health  and  training  of  the  other  fifteen 
per  cent.,  who  are  likely  to  be  physically  weak  and 
inferior.  There  is  no  rule  of  therapeutics  more 
inflexible  than  that  which  requires  regular  action 
and  exercise  for  the  conservation  of  health. 

It  is  likewise  an  essential  element  in  the  reform- 
ation of  the  criminal.  This,  in  a  social  sense,  con- 
sists in  teaching  him  a  useful  occupation,  and 
training  him  in  the  practice  of  it,  until  the  habit  of 
indolence  and  rapine  is  broken  up,  and  the  habit  of 
regular  industry  is  substituted  for  it.  Over  ninety- 
two  per  cent,  of  all  who  have  been  committed  to  the 
Elmira  Reformatory  were  guilty  of  crimes  against 
property.1  As  this  is  the  evidence  of  twenty-four 
years'  experience  it  is  a  reliable  indication  that  the 
great  mass  of  the  criminality  of  the  country  is  the 
result  of  industrial  inefficiency  ;  that  is,  that  the 

1  Elmira  Reformatory  Year  Book  for  1899. 


272  The  Science  of  Penology 


generality  of  criminals  are  impelled  to  crime  either 
by  indisposition  or  inability  to  procure  what  they 
want  honestly.  The  logical  and  natural  deduction 
is  that  the  most  effectual  remedy  for  criminality,  and 
the  most  complete  social  protection  from  crime  is 
to  be  expected  from  a  transformation  of  criminals 
into  profitable  producers.  When  a  prisoner  has 
been  taught  how  to  acquire  the  means  of  supplying 
wants  honestly,  the  necessity  for  prey  will  be  re- 
moved, the  attractiveness  of  honest  industry  will 
outweigh  in  his  estimation  the  risk  of  criminal  pur- 
suits, and  he  will  be  led  to  adopt  honesty  as  the 
"  best  policy  "  of  life.  When  the  State  gives  the 
criminal  a  good  trade  and  inspires  him  with  a  dis- 
position to  practise  it,  it  has  atoned,  to  the  extent 
of  its  ability,  for  any  former  neglect  of  duty  toward 
him.  It  has  transformed  the  dangerous  dependent 
into  an  independent  citizen  ;  it  has  bestowed  a  per- 
sonal capital  upon  him,  which  cannot  be  lost  or 
stolen,  and  which  will  always  be  sufficient  for  his 
maintenance. 

"  Industrial  training  either  pure  and  simple,  or  by  engaging 
convicts  in  some  useful  industry,  is  the  only  way  to  make  them 
obedient  and  tractable  while  in  prison,  and  industrious  and 
useful  members  of  society  when  they  are  released." ' 

"  Every  interest  of  society  and  consideration  of  discipline, 
economy,  reformation,  and  health  demands  that  prisoners 
should  be  kept  employed  at  productive  work.  Manufacturers, 
wage  earners,  and  all  who  have  given  the.  subject  any  consid- 
eration are  practically  unanimous  in  this  conclusion."* 

1  Report  of  United  States  Industrial  Commission,  on  Prison  Labor,  p.  21. 

1  Report  of  the  United  States  Industrial  Commission,  on  Prison  Labor ', 
p.  6. 


Prison  Labor  273 


The  imperative  necessity  of  keeping  all  prisoners 
constantly  employed  in  productive  labor  is  a  positive 
law  of  scientific  Penology.  So  inexorable  is  this 
law,  that  its  infraction  by  imprisonment  in  idleness 
manifestly  results  in  a  much  greater  social  injury 
than  is  usually  to  be  feared  from  the  freedom  of 
the  criminal  under  surveillance.  It  follows  that 
society  cannot  justly  permit  convicts  to  be  im- 
prisoned unless  it  can  set  them  at  work.  The 
obligation  of  the  State  to  provide  useful  labor  for 
its  prisoners  is  quite  equal  to  its  obligation  to  pro- 
vide restraint. 

The  fundamental  principle  is  that  every  convict 
must  earn  the  cost  of  his  arrest,  trial,  and  con- 
finement for  crime,  if  he  is  able,  and  that  the 
State  must  afford  him  all  possible  facilities  for 
doing  this.  The  convict  should  therefore  be  charged 
with  these  costs,  and  credited  with  his  work  at  its 
fair  value  at  the  place  and  time  ;  board,  lodging, 
and  clothing  deducted.  If  he  is  able  in  this  way  to 
accumulate  savings,  the  warden  should  either  remit 
them  to  dependent  relatives,  from  time  to  time,  or 
retain  them  as  capital  on  which  the  convict  can 
begin  independent  life  when  released. 

No  entirely  satisfactory  way  of  discharging  this 
duty  by  the  State,  under  existing  criminal  codes 
and  methods  of  imprisonment,  has  yet  been  de- 
vised. The  difficulties  which  have  defeated  the 
various  attempts  to  observe  this  law  of  Peno- 
logy seem  to  be  insurmountable  under  the  prevail- 
ing methods.  These  attempts  have  been  almost 

18 


274  The  Science  of  Penology 


entirely  restricted,  moreover,  to  those  confined  in 
penitentiaries  and  in  workhouses,  who  constituted 
about  60  per  cent,  of  the  97,175  prisoners  reported 
in  the  eleventh  United  States  Census.  For  the  23 
per  cent,  held  under  short-term  sentences  in  jails 
and  city  prisons  it  has  been  practically  impossible 
to  provide  regular  useful  labor.  This  is  one  of  the 
principal  causes  of  the  pernicious  results  of  im- 
prisonment in  these  institutions,  and  constitutes 
one  of  the  strongest  reasons  for  the  abandonment 
of  their  use  as  prisons.  The  tentative  efforts 
which  have  been  made  have  been  grouped  in  two 
classes,  the  first  including  all  those  in  which  the 
State  has  endeavored  to  secure  the  business  man- 
agement of  private  parties  by  sharing  with  them 
the  profit  of  prison  labor  under  the  "  lease"  system, 
the."  contract "  system,  and  the  "  piece-price  "  sys- 
tem ;  and  the  second  comprising  those  in  which 
prisoners  have  been  employed  for  the  sole  benefit 
of  the  State;  as  under  the  "public  account,"  the 
"  State  use,"  and  the  "  public  ways  and  works  "  sys- 
tems. These  systems  were  investigated  by  the 
Congressional  Industrial  Commission  of  1900,  and 
reported  upon  in  Vol.  Ill  on  Prison  Labor.  The 
following  conclusions,  among  others,  unanimously 
reached  by  the  Commission,  may  be  accepted  as 
the  latest  declaration  of  penological  science  upon 
prison  labor. 

"  First :     That  provision  should  be  made  in  the  laws  of  each 

State  for  the  employment  of  all  prisoners  in  productive  labor. 

Second  :     The  State  should  have  absolute  control  of  the 


Prison  Labor  275 


care,  punishment,  reformation,  and  employment  of  the  prison- 
ers, as  well  as  the  disposition  of  the  products  of  their  industry. 

Third  :  In  order  to  harmonize  the  antagonistic  interests  of 
the  different  States  it  is  essential  that  the  industrial  operations 
of  all  the  penal,  reformatory,  and  eleemosynary  institutions  in 
each  should  be  under  the  supervision  of  a  central  office. 

Fourth  :  The  employment  of  prisoners  with  the  intention 
of  producing  revenue,  either  for  the  State  exclusively,  or  for 
private  individuals  or  corporations  and  the  State  jointly,  tends 
to  the  greatest  competition  with  free  labor. 

Sixth  :  The  employment  of  -prisoners  in  the  production  of 
supplies  for  the  maintenance  of  State,  county,  and  municipal 
institutions  and  the  support  of  the  inmates  of  the  same,  or  in 
work  on  the  public  buildings  or  roads,  tends  to  the  least  direct 
competition  with  free  labor. 

Ninth  :  The  most  desirable  system  for  employing  convicts 
is  one  which  provides,  primarily,  for  the  punishment  and  re- 
formation of  the  prisoner  and  the  least  competition  with  free 
labor,  and  secondarily,  for  the  revenue  of  the  State." 

In  accordance  with  these  principles  the  systems 
of  employment  of  the  first  class  are  being  rapidly 
abandoned  in  favor  of  the  second  or  "  public  bene- 
fit" class.  The  Industrial  Commission  recom- 
mended, "  that  all  of  its  provisions,  or  such  of  them 
as  may  be  possible,  shall  be  embodied  in  the  laws 
of  the  different  States,  with  such  additional  pro- 
visions as  to  management  as  may  be  necessary  to 
meet  the  prevailing  social  conditions."  In  order 
to  bring  the  States  into  closer  harmony  with  peno- 
logical  principles,  it  would  be  preferable,  for  three 
reasons,  that  the  administration  of  the  law  be 
imposed  upon  a  single  Commissioner  of  Prisons. 

First :     The  duties  of  the  position  are  insufficient 


276  The  Science  of  Penology 


to  occupy  the  entire  time  of  more  than  one  capable 
man.  The  interests  of  the  public  and  the  prison- 
ers are  likely  to  be  more  intelligently  and  efficiently 
promoted  when  the  entire  time  and  thought  of  one 
capable  man  are  devoted  to  them  than  by  the  de- 
sultory attentions  of  several  men.  There  will  be  a 
greater  stimulus  to  the  ambition  of  a  single  head 
than  if  any  success  or  distinction  for  good  manage- 
ment is  to  be  divided  among  several.  A  salary 
large  enough  to  attract  the  best  talent  can  be 
offered  to  one  man,  which  would  still  be  less  than 
it  would  be  necessary  to  pay  four,  or  a  less  num- 
ber. A  single  commissioner  would  more  efficiently 
discharge  the  duties  of  paroling  prisoners,  in  con- 
junction with  other  officials,  as  heretofore  sug- 
gested, than  a  mixed  commission ;  and  lastly,  but 
chiefly,  with  a  single  commissioner  there  would  be 
no  divided  responsibilty  for  failure  or  success. 
The  following  provisions  were  not  approved  by  all 
the  members  of  the  Industrial  Commission,  viz.:  the 
limitation  by  a  general  law  of  the  hours  of  labor  ; 
the  suppression  of  all  machines,  except  those  oper- 
ated by  hand-  or  foot-power ;  and  the  prohibition  of 
interstate  commerce  in  prison-made  goods. 

These  exceptions  are  founded  upon  sound  prin- 
ciples. 

The  State  has  neither  the  ability  to  determine, 
nor  the  right  to  limit  by  law,  either  the  quantity  of 
a  man's  labor  which  he  may  dispose  of,  or  the 
price  at  which  he  shall  sell  it.  Such  laws  are  in 
violation  of  personal  liberty  and  independence  and 


Prison  Labor  277 

the  rights  of  private  contract.  They  restrict  the 
earnings  and  pursuit  of  happiness  of  the  strong, 
skillful,  and  capable,  to  the  limitations  of  the  weak 
and  incapable.  They  are  tyrannical  restraints 
upon  free  labor  and  upon  prison  labor,  which  should 
be  regulated  by  the  neccessities  of  each  particular 
prisoner  for  progress  in  reformation  and  toward 
freedom.  Such  a  positive  limitation  of  the  hours 
of  labor  by  a  general  law  necessarily  interferes 
very  seriously  with  the  discipline  of  the  prisoners 
by  the  warden,  who  should  have  freedom  to  in- 
crease or  diminish  the  work  required  of  each  con- 
vict according  to  his  abilities,  and  as  a  reward  for 
good,  and  as  a  punishment  for  bad  behavior.  The 
unrestricted  control  of  the  prisoner  and  his  action 
by  the  warden  is  essential  to  good  discipline. 

The  prohibition  of  the  use  of  modern  machinery 
and  of  the  inventions  for  increasing  the  product  of 
labor  by  mechanical  power  is  pernicious  in  every 
respect.  It  is  in  principle  a  continuation  of  the 
long  and  universally  condemned  "  crank "  and 
"  treadmill  "  idea  of  useless  punitive  work.  It  is  an 
unjustifiable  cruelty  to  impose  unnecessary  and 
irksome  toil  which  arouses  resentment  and  a  re- 
bellious spirit  in  the  prisoner.  It  impairs  the  chief 
purposes  of  prison  labor,  the  training  of  the  con- 
vict for  profitable  employment  when  liberated,  and 
lessens  the  pecuniary  profit  of  the  State  from  his 
labor,  by  compelling  him  to  do  his  work  in  a  man- 
ner which  is  obsolete  outside  the  prison,  and  un- 
profitable everywhere.  It  degrades  the  prisoner 


278  The  Science  of  Penology 


from  the  rank  of  an  intelligent  workman  to  that  of 
a  human  machine,  and  thus  tends  to  defeat  what  is 
announced  in  the  ninth  conclusion  as  the  primary 
object  of  his  labor,  that  is,  reformation.  The 
scientifically  correct  method  of  working  prisoners 
is  to  train  them  to  do  their  work  in  the  very  best 
and  most  profitable  manner,  just  as  they  will  be 
obliged  to  do  it  when  released.  Instead  of  pro- 
hibiting the  use  of  power  machines,  the  State 
should  provide  the  same  power  machines  as  are 
used  by  free  workers,  as  far  as  it  is  practicable  for 
it  to  do  so.  Society  requires  that  its  affairs  shall 
be  managed  with  business  skill  and  intelligence, 
especially  that  part  of  them  which  is  conducted  for 
its  benefit  as  a  business.  It  stultifies  itself  if  it 
attempts  to  train  the  violators  of  its  laws  to  honest 
self-support  by  manifestly  false,  hypocritical,  and 
absurd  methods. 

On  the  same  general  principles  the  boycotting 
of  the  product  of  the  prisoners'  labor  in  any  way, 
by  law,  is  reprehensible.  The  appeal  to  the 
doubtful  power  of  Congress  to  prohibit  by  inter- 
state commercial  regulations  the  sale  of  prison- 
made  goods  outside  the  State  where  they  were 
made  is  as  unnecessary  as  it  is  unwise  under  the 
operation  of  the  "  State's-use "  plan  unanimously 
proposed  by  the  Commission.  Such  a  prohibition 
is  contrary  to  public  policy,  for  the  diversities  of 
natural  advantages  will  force  different  States  into 
varied  productions  which  are  likely  to  be  in  ex- 
cess of  their  own  wants,  and  which  may  be  more 


Prison  Labor  279 


economically  purchased  from  them,  than  made  by 
other  States.  There  should  be  no  restriction  upon 
the  inter-state  exchanges  of  prison-made  goods, 
if  a  profitable  employment  of  all  the  prisoners 
in  the  country  is  to  be  promoted.  It  is  only 
necessary  to  exclude  the  goods  from  the  market, 
and  confine  them  to  the  supply  of  State  and  public 
wants,  to  sale  at  fair  and  market  prices  to  and  by 
the  public  officials,  in  order  to  secure  the  least 
possible  interference  with  prices  and  wages  out- 
side. Indeed,  it  is  probable  that  only  in  this  way, 
by  a  free  inter-state  exchange,  can  a  sufficient 
permanent  market  be  secured  for  the  constant 
employment  of  all  prisoners,  and  the  "  State  use  " 
plan  thereby  made  successful. 

Under  unhampered  and  natural  conditions,  the 
"  State  use "  plan  offers  the  best  solution  of  the 
prison-labor  question  which  has  so  far  been  pro- 
posed. It  is  likely  to  be  satisfactory  so  long  as 
the  demand  equals  the  supply  of  products.  It 
may  be  expected  that  .a  more  intelligent  treatment 
of  the  criminal  class  by  the  State  will  reduce  its 
numbers,  and  consequently  its  products,  pari  passu 
with  the  decreased  demand  which  is  to  be  expected 
by  the  permanent  supply  of  many  of  the  needs  of 
public  institutions.  It  will  be  satisfactory  to  the 
public  mind,  because  it  relieves  the  people  from 
taxation  for  the  support  of  its  prisoners,  and  also  for 
the  expenses  of  other  public  institutions,  to  the  ex- 
tent of  the  value  of  the  labor  of  its  able-bodied  crimi- 
nals. It  will  permit  the  greatest  possible  diversity 


280  The  Science  of  Penology 


of  employment  and  training  in  trades  of  prison- 
ers, and  afford  the  thoughtful  and  conscientious  the 
satisfaction  of  feeling  that  they  are  contributing 
by  their  enforced  labor  to  the  welfare  of  the  society 
which  they  have  wronged,  and  so  are  expiating  to 
that  extent  their  crimes.  It  will  thus  aid  in  re- 
formation, and  accomplish  the  best  possible  result 
towards  the  transformation  of  the  criminal  into  an 
honest  and  self-supporting  citizen.  It  will  supply 
public  offices  and  institutions  with  honest  goods, 
for  there  will  be  no  object  in  cheapening  the  pro- 
duct by  the  use  of  inferior  material  or  workman- 
ship. It  will  prevent  the  temptation  of  public 
purchasing  officers  by  bribes  and  corruption  in  the 
competition  of  manufacturers,  a  fruitful  means  of 
their  degradation.  It  will  enable  the  State  to 
derive  the  greatest  pecuniary  relief  and  benefit 
from  the  employment  of  its  prisoners.  These 
reformatory  and  economic  advantages  greatly 
exceed  all  possible  objections  which  have  yet 
been  discovered  to  the  "  State  use "  system,  and 
warrant  its  general  adoption  in  all  prisons  where 
convicts  can  be  usefully  employed  in  productive 
work  inside  their  walls.  In  sections  of  the  country 
where  circumstances  favor  agricultural  employ- 
ment, land  may  be  cultivated  by  those  who  can 
be  controlled,  not  only  to  raise  crops  for  the  table 
of  the  prisoners  but  also  for  sale,  and  the  products 
of  agriculture  which  cannot  be  used  in  the  prisons, 
could  be  sold  for  the  public  treasury. 

Scientific  Penology  however  requires  the  collec- 


Prison  Labor  281 


tion  of  all  the  incorrigible  and  long-time  convicts 
into  penitentiaries  by  themselves,  where  the  ma- 
chinery, power,  and  facilities  for  the  manufacture 
of  office,  prison,  hospital,  school  and  armory  furni- 
ture, tin-ware,  crockery,  cotton  and  woolen  cloth 
for  the  inmates  of  all  public  institutions  and  for 
the  uniforms  of  the  militia,  blankets,  clothing, 
under-clothing,  shoes  and  stockings,  hats  and  caps, 
can  be  advantageously  set  up  and  employed. 
Much  of  the  State  printing  can  also  be  done  by 
prisoners,  especially  blanks  and  forms  of  all  kinds 
for  the  various  departments  and  for  the  militia. 

Where  extensive  fortifications  are  to  be  con- 
structed on  islands  and  promontories,  or  river  and 
harbor  improvements  made,  requiring  a  considera- 
ble time  and  a  large  number  of  laborers,  and  the 
location  is  favorable  for  guarding  them,  convicts 
may  be  employed ;  so,  also,  in  the  draining  of 
swamp  lands,  and  in  the  reclamation  of  arid  wastes 
by  the  construction  of  reservoirs  and  irrigation 
canals  in  uninhabited  sections  of  the  country,  the 
government  could  employ  large  numbers  of  these 
life  convicts,  the  majority  of  whom  are  only  fit  for 
manual  labor.  Thus  the  people  would  secure  these 
valuable  improvements  at  the  least  cost,  and  main- 
tain the  convicts  without  any  appreciable  competi- 
tion with  free  labor.  Certainly  all  United  States 
prisoners  should  be  so  employed.  State  prisoners 
should  be  turned  over  to  the  charge  of  the  National 
Government,  for  such  purposes,  and  the  State  in  this 
way  be  entirely  relieved  of  their  support,  while  the 


282  The  Science  of  Penology 


cost  to  the  nation  would  be  only  the  cost  of  main- 
taining the  workers.  By  such  measures  economical 
employment  can  be  provided  for  about  half-  the 
prisoners  which  the  public  is  obliged  to  support. 

The  short  term  convicts,  in  jails  and  in  reform- 
atories, however,  cannot  be  expected  to  contribute 
very  largely  to  their  own  maintenance.  The  labor 
of  prisoners  in  reformatories  must  necessarily  be  in 
the  main  instructive  and  non-productive.  Its  eco- 
nomical object  is  the  production  of  good  citizenship, 
and  not  goods.  Most  of  the  prisoner's  time  must 
be  occupied  in  learning  how  to  do  profitable  work, 
and  in  acquiring  skill  at  trades.  Society  aims  to 
derive  its  reward  from  their  training  by  reducing 
the  numbers  of  the  predatory  criminal  class,  and 
transferring  them  into  the  class  of  independent 
producers.  They  may,  as  they  acquire  skill  and 
approach  release,  be  able  to  contribute  somewhat 
by  their  labor  to  reduce  the  cost  of  their  training 
and  maintenance,  if  this  is  wisely  directed  to  the 
care  of  the  reformatory,  the  cultivation  of  farms,  and 
the  making  of  tools  and  various  supplies  ;  but  such 
labor  will  have  little  influence  beyond  themselves, 
and  their  immediate  surroundings.  It  is  a  negli- 
gible item  in  this  discussion. 

Industrial  schools,  inebriate  asylums,  and  pros- 
titute homes  are  in  the  same  category  as  reform- 
atories, with  respect  to  the  employment  of  their 
inmates.  This  is  primarily  therapeutic  and  educa- 
tional with  them  also.  Productive  labor  is  essential 
in  them  for  sanitary  and  economical  reasons,  but  it 


Prison  Labor  283 


will  not  be  productive  of  much  profit.  Those  con- 
fined on  long  terms  in  inebriate  asylums  should  be 
compelled  to  labor  regularly,  and  in  general  will 
be  able  to  do  so  profitably.  Agriculture  and  gar- 
den work,  and  such  hand  work  as  can  be  done  with- 
out a  large  expenditure  for  power  and  machinery, 
should  be  provided  for  them,  in  order  to  enable 
them  to  earn  all  that  is  possible  while  undergoing 
treatment. 

Statistics  show  that  23  per  cent,  or  probably,  on 
an  average,  it  may  be  said  that  25  per  cent,  of  the 
prisoners  of  society  at  any  one  time,  are  held  by  it 
— on  short-term  sentences  in  jails  and  city  prisons— 
in  complete  idleness.  Over  55  per  cent,  of  the 
25,701  prisoners  committed  to  jails  and  houses  of 
correction  in  the  State  of  Massachusetts  during  the 
year  ending  September  30,  1899,*  had  been  previ- 
ously committed  from  one  to  over  fifty  times.  If 
the  same  ratio  prevails  throughout  the  country, 
and  we  assume  a  present  prison  population  of  100,- 
ooo,  the  jail  population  averages  25,000.  Of  these 
!3>75O  would  be  recommitments,  and  11,250  first 
commitments,  at  any  one  date.  Assuming  an  aver- 
age term  of  sixty  days,  there  would  be  an  annual 
average  of  six  times  the  first  commitment,  or  67,500 
different  persons  committed  during  the  year,  in 
addition  to  the  13,750  recidivists  or  rounders,  mak- 
ing a  total  of  81,250  different  persons  held  in  jail 
during  a  year,  which  is  81^  per  cent,  of  the  total 
number  of  prisoners  in  confinement  at  any  one  time. 

1  Report  of  the  Commissioners  of  Prisons  of  Massachusetts,  igoo. 


284  The  Science  of  Penology 


This  is  an  approximately  accurate  estimate  of  the 
compulsory  attendance  which  our  present  vicious 
penal  laws  enforce  in  these  "  schools  of  crime  and 
hotbeds  of  corruption."  67,500  persons  with 
criminal  disposition  are  annually  thrust  into  con- 
finement and  association  with  13,750  confirmed, 
corrupt,  and  expert  criminals,  and  then,  after  being 
allowed  to  ferment  with  them  in  idleness  for  sixty 
days,  are  turned  loose  to  wreak  their  ravage  on 
society.  If  there  is  a  constant  increase  of  the  crim- 
inal class,  and  of  the  social  burden  of  crime,  the 
society  which  persists  in  such  an  utterly  inexcusable 
folly  is  responsible  for  it.  The  wonder  is  that  the 
increase  is  not  greater,  notwithstanding  the  tre- 
mendous and  expensive  efforts  constantly  made  at 
the  wrong  end  for  its  repression. 

Science  proposes  a  rational  and  adequate  remedy 
for  this  great  evil,  by  the  substitution  of  fines  and 
labor  under  official  surveillance  as  the  penalty  for 
all  minor  crimes,  instead  of  short-term  imprison- 
ments in  jails.  This  course  will  at  once  solve  the 
problem  of  prison  labor  for  the  remaining  25  per 
cent,  of  prisoners,  by  opening  up  all  the  opportuni- 
ties for  employment  which  exist  outside  the  prison 
under  ordinary  conditions  and  terms.  It  retains 
one  quarter  of  all  prisoners  in  their  natural  and 
usual  relations  with  outside  labor ;  it  opens  up  to 
the  prisoner  every  existing  variety  of  employment ; 
it  relieves  the  public  from  the  cost  of  his  mainten- 
ance in  idleness,  and  the  support  of  jails  and  offi- 
cials ;  it  enables  the  convict  to  make  retribution  by 


Prison  Labor  285 


labor  for  his  offense,  and  to  contribute  somewhat, 
if  necessary,  to  the  support  of  dependent  relatives ; 
it  replenishes  the  public  treasury,  by  the  fines  earned, 
instead  of  depleting  it ;  and,  most  important  of  all, 
it  enables  the  State,  through  the  kindly  ministra- 
tions of  its  probation  officer,  to  lead  the  offender 
back  to  a  life  of  honest  industry,  instead  of  forcing 
him  into  a  life  of  criminality. 

Most  of  the  public  work  in  cities  and  towns 
should  be  done  by  their  prisoners ;  vagrants, 
tramps,  and  drunkards,  who  will  not  be  restrained 
by  fines,  should  make  the  roads  and  streets,  and 
keep  them  clean.  The  cleaning  of  public  buildings 
and  the  work  in  parks  and  public  places  would 
furnish  employment  for  many.  If  the  number 
were  greater  than  needed  for  the  usual  public  work, 
desired  improvements  might  be  made.  In  this 
way  the  public  would  be  relieved  of  a  double  ex- 
pense, that  of  maintaining  the  prisoner,  and  of 
paying  others  for  the  work  he  does.  There  is  no 
rational  excuse  for  dirty  and  neglected  streets,  and 
full  jails  and  prisons,  at  the  same  time.  With 
proper  management  there  would  be  no  great  dan- 
ger that  the  prisoners  would  escape.  A  canvas 
uniform  over  their  clothes  would  remove  some  of 
the  public  and  personal  objections  to  street  work, 
and  tend  to  prevent  escapes  ;  which,  however,  would 
seldom  be  attempted  by  prisoners  on  probation 
and  not  confined,  if  incarceration  be  the  alternative. 

The  scheme  of  prison  labor  which  the  science  of 
penology  proposes  then,  is,  profitable  production  of 


286  The  Science  of  Penology 


materials  for  public  institutions  unhampered  by  re- 
strictions, in  penitentiaries  and  prisons  :  strictly  ed- 
ucational work  in  reformatories,  and  general  public 
work  without  imprisonment  for  short-term  con- 
victs. 

But  a  duty  also  imperatively  devolves  upon  the 
community  quite  as  important  as  the  making  of 
wise  laws,  but  even  less  recognized  by  the  public : 
the  self-protective,  philanthropic  duty  of  aiding  the 
prisoner  at  large,  and,  when  discharged  from  dur- 
ance, to  rehabilitate  himself  as  a  self-supporting 
member  of  free  society.  Society  may  turn  the 
cold  shoulder  to  the  released  prisoner  or  extend  a 
hand  of  welcome  and  assistance.  According  to  its 
attitude  will  all  the  time,  pains,  and  expense  ex- 
pended in  his  reformation  be  wasted  by  driving  him 
back  to  crime  for  a  living,  or  saved  by  timely  help. 
Self  interest  and  Christianity  both  require  extra- 
ordinary effort  and  self-sacrifice  on  the  part  of  the 
public,  to  establish  in  honest  self-support  the  re- 
leased prisoner  who  brings  a  good  recommendation 
from  his  warden.  This  is  a  corollary  which  seems 
to  follow  from  every  phase  of  the  subject. 


CHAPTER  XV. 

THE    INSTALLATION  AND    ADMINISTRATION    OF    PENAL 
AND    REFORMATORY    INSTITUTIONS. 

The  Kinds  of  Institutions  Enumerated — Police  Stations — Workhouses — 
County  Jails — Who  Should  be  Committed  to  Jail — Location  and 
Construction  of — Industrial  Schools — For  Boys — For  Girls — Re- 
formatories —  Administration  —  Female  Reformatories  —  Inebriate 
Asylums — Criminal  Insane  Asylums — Penitentiaries — Location — Ac- 
commodations —  Discipline  —  Corporal  Punishment  —  Dietary  —  The 
Wardens — Prison  Laboratories — Summary. 

THERE  are  eight  different  kinds  of  institutions 
for  the  confinement  of  violators  of  the  law 
required  in  the  social  war  against  the  criminal 
class.  Two  of  them,  where  prisoners  are  held  by 
local  authorities,  are  necessarily  under  local  or  mu- 
nicipal control.  They  are  police  stations,  for  the 
custody  of  the  arrested  who  cannot  be  immediately 
disposed  of  by  a  magistrate ;  and  workhouses, 
where  drunkards,  prostitutes,  vagrants,  beggars, 
and  tramps  can  be  temporarily  restrained,  pun- 
ished, and  made  to  earn  the  cost  of  their  arrest 
and  detention. 

The  other  six  must  be  entirely  under  State  con- 
trol, because  in  them  prisoners  are  confined  under 
the  laws  of  the  State.  They  are  : 

First :  Jails,  for  the  confinement  of  prisoners 
awaiting  trial. 

287 


288  The  Science  of  Penology 


Second  :  Industrial  schools,  for  misdemeanants 
of  school  age. 

Third  :  Reformatories. 

Fourth  :  Asylums  for  inebriates,  and  for  pros- 
titutes. 

Fifth  :  Hospital  prisons  for  the  criminal  insane, 
and  insane  convicts. 

Sixth :  Penitentiaries  for  the  incorrigible,  and 
those  sentenced  for  life. 

Police  Stations  should  be  conveniently  located 
near  the  centre  of  each  district  or  precinct.  They 
should  be  provided  with  a  general  office,  private 
offices  for  the  captain,  the  probation  officer,  and 
the  matron,  with  a  day-room,  and  a  dormitory  suf- 
ficient for  all  officers  on  duty ;  and  with  separated 
cells  for  the  confinement  of  male  and  female  pris- 
oners, of  such  number  that  not  more  than  one 
prisoner  shall  ever  be  confined  in  each.  Steel- 
plate  cells  with  proper  heating,  ventilating,  and 
toilet  arrangements  are  the  most  approved  style  of 
cell  construction,  both  for  economy  and  safety,  and 
are  readily  adapted  to  all  varieties  of  requirements. 
Every  police  headquarters  station  should  be  sup- 
plied with  a  Bertillon  outfit  for  measurement  and 
identification  and  a  well-instructed  official  in  charge 
of  it.  District  centres  for  the  local  collection 
of  Bertillon  cards  of  signalment  or  identification 
should  be  established  in  New  York,  Chicago, 
Kansas  City,  Denver,  Portland,  Ore.,  San  Fran- 
cisco, Fort  Worth,  Tex.,  and  Atlanta,  Ga.  All 
town  and  city  police  headquarters  should  arrange 


Penal  and  Reformatory  Institutions    289 


with  the  most  convenient  of  these  for  an  inter- 
change of  the  cards  of  the  "  suspects  "  who  may 
be  arrested.  The  signalments  of  all  important  crim- 
inals should  be  forwarded  to  these  district  centres 
immediately  upon  their  arrest,  so  that  telegraphic 
information  can  be  received  from  them  in  time  to 
be  used  when  the  prisoner  is  brought  before  the 
magistrate.  These  district  centres  should  inter- 

o 

change  cards  with  the  national  bureau  of  identifi- 
cation in  Washington,  when  necessary  or  desirable, 
in  order  to  secure  the  complete  identification  of  all 
the  criminal  class.  By  such  a  plan  many  danger- 
ous criminals  would  be  caught  and  confined  for  the 
perpetration  of  minor  crimes,  and  so  their  more 
serious  depredations  would  often  be  prevented. 
The  facilities  which  our  railroads  afford  to  criminals 
for  rapid  raids  upon  cities  and  towns  where  they 
are  personally  unknown  would  also  be  greatly 
diminished  by  such  an  extension  of  the  sphere  of 
influence  of  these  central  stations.  It  would  to  a 
certain  degree  extend  police  protection  against 
professional  criminals  over  the  whole  country. 

Workhouses. — In  all  centres  of  population  in- 
fested by  drunkards,  prostitutes,  vagrants,  tramps, 
and  beggars  in  greater  number  than  can  be  eco- 
nomically cared  for  and  employed  at  useful  labor 
while  lodged  in  the  police  station,  workhouses 
should  be  established.  They  should  be  located 
conveniently  near  police  headquarters,  in  suburbs 
where  some  land  can  be  cultivated  by  the  prison- 
ers, and  other  work  done  for  the  public  benefit* 


290  The  Science  of  Penology 

such  as  making  roads,  gardening,  repairing  and 
cleaning  streets,  working  in  parks  and  on  public 
improvements  of  all  kinds,  making  clothes  for 
prisoners,  and  in  whatever  industries  can  be  ad- 
vantageously carried  on  in  the  locality.  Police 
magistrates  should  commit  to  workhouses  all  those 
who  cannot  be  punished  by  fine,  or  released  on 
probation.  As  this  class  of  prisoners  is  of  a  uni- 
formly low  grade,  there  will  be  no  necessity  for 
separate  cells  or  treatment,  and  congregate  lodg- 
ings and  eating  arrangements  can  be  permitted. 
But  an  absolute  and  complete  separation  of  the 
sexes  must  be  maintained,  if  both  sexes  are  con- 
fined in  the  same  institution.  Regular  and  constant 
work  for  every  prisoner  according  to  his  ability 
is  the  vital  necessity,  both  because  work  is  the 
most  obnoxious  and  dreaded  punishment  of  this 
class,  and  for  economical  reasons.  The  work- 
house, therefore,  must  be  under  the  management 
of  a  superintendent  of  experience,  who  has  the 
ability  to  provide  employment  for  all  his  prisoners. 
Failure  to  work  all  prisoners  and  to  make  the 
workhouse  self-supporting,  or  a  very  light  burden 
to  his  community,  should  cause  the  immediate 
removal  of  the  superintendent,  but  so  long  as  he 
accomplishes  this  object  his  tenure  of  office  should 
be  secure. 

County  Jails. — Every  judicial  district  requires 
a  suitable  jail  for  the  secure  confinement  of  prison- 
ers awaiting  trial,  and  detained  witnesses.  But  no 
convicted  person  who  has  been  adjudged  after 


Penal  and  Reformatory  Institutions    291 


trial  tainted  with  the  disease  of  criminality  should 
ever  be  incarcerated  among  those  who  are,  in  the 
eye  of  the  law,  presumed  innocent  until  they  have 
been  found  guilty.  The  promiscuous  herding  in 
jails  of  prisoners  of  both  sexes,  all  ages,  innocent 
and  guilty,  and  of  all  degrees  of  criminality,  not 
only  nullifies  the  usefulness  of  criminal  laws  ;  it  also 
propagates  criminals,  and  maintains  the  malignity 
of  the  criminal  class.  It  is  this  practice  which  has 
caused  the  universal  condemnation  of  county  jails. 
It  is  a  perversion  of  their  original  and  legitimate 
purpose,  to  which  sound  Penology  demands  an 
immediate  return.  A  pernicious  and  direful  ex- 
perience has  demonstrated  that  it  is  quite  imprac- 
ticable to  use  jails  as  penal  institutions.  They  are 
necessary  for  the  safe  custody  of  dangerous  crimi- 
nals before  trial,  but  such  confinement,  the  law 
prescribes,  shall  be  as  brief  as  possible.  Every 
accused  person  is  entitled  to  a  speedy  trial.  As  it 
is  manifestly  impossible  to  adapt  the  jail  and  its 
discipline  advantageously  to  both  the  guilty  and 
the  presumably  innocent,  the  convict  must  be  kept 
out.  The  correction  of  this  great  evil,  therefore, 
is  within  the  power  of  the  judges  without  further 
legislation.  The  judges  must  be  held  responsible 
for  its  continuation.  They  ought  never  to  allow 
a  convicted  felon  to  be  returned  to  the  jail.  If 
jails  are  restricted  to  untried  prisoners,  the  problem 
is  greatly  simplified,  and  can  be  relieved  of  many 
perplexing  elements.  As  untried  prisoners  can- 
not justly  be  compelled  to  work,  except  within  the 


292  The  Science  of  Penology 

walls  and  for  their  own  comfort  and  maintenance, 
the  prison  labor  question  settles  itself  for  jails. 
If  no  profitable  industry  can  be  conducted  in 
them,  there  is  less  necessity  for  experienced  war- 
dens, and  their  management  may  continue  in  the 
hands  of  the  sheriffs,  who  are  properly  held  re- 
sponsible by  the  laws  for  the  custody  of  prisoners. 
A  few  plain  regulations  will  secure  the  best  ad- 
ministration practicable,  and  remove  the  well- 
founded  objections  to  existing  methods. 

No  convict  should  ever  be  sentenced  to  a  jail ;  nor 
should  any  minor  under  school  age  ;  nor  any  insane, 
imbecile,  epileptic,  crippled,  or  diseased  person  ;  nor 
any  one  for  whom  a  special  asylum  or  hospital  exists. 

Only  one  prisoner  should  be  allowed  to  occupy 
a  cell,  and  he  should  never  be  permitted  to  com- 
municate with  or  be  seen  by  any  other  prisoner  by 
whom  he  might  be  afterwards  recognized  and 
annoyed. 

Male  and  female  prisoners  should  be  kept  in  en- 
tirely separated  departments,  out  of  sight  and 
sound  of  one  another. 

No  visitors  should  be  permitted  in  jails  except 
the  members  of  a  prisoner's  immediate  family  at 
infrequent  periods,  and  his  legal  and  religious 
counsel. 

Ample  outdoor  daily  exercise,  weekly  baths, 
plain  food,  books,  but  no  newspapers,  should  be 
provided.  The  prisoner  should  be  treated  as  a 
suspected,  but  not  as  a  guilty  person,  and  allowed 
whatever  extra  comforts  he  is  able  to  pay  for  under 


Penal  and,  Reformatory  Institutions    293 


the  necessary  sanitary  restrictions.  It  is  the  duty 
of  the  State  to  preserve  his  physical,  mental,  and 
moral  health  unimpaired  by  confinement. 

Jails  should  be  located  with  a  due  regard  to  the 
convenience  of  the  courts,  and  to  economy  of  ad- 
ministration. The  modern  steel-cell  construction 
is  the  best  adapted  to  most  localities.  They  should 
be  under  the  entire  control  and  regulation  of  the 
State  commissioner  of  prisons,  who  should  have 
authority  over  the  sheriff  to  this  extent.  Such  is 
the  quick  and  easy  remedy  which  science  proposes 
for  one  of  the  greatest,  most  expensive,  and  most 
pernicious  faults  of  existing  criminal  court  practice. 

Industrial  Schools  are  the  primary  department 
of  criminal  reformation.  They  should  be  estab- 
lished by  the  State,  and  be  of  such  size,  and  in  such 
localities,  as  will  accommodate  conveniently  all  its 
unmanageable  and  delinquent  children  of  school  age. 
They  should  be  built  and  maintained  by  the  State, 
and  managed  by  a  board  of  trustees  appointed  by 
the  Governor,  by  and  with  the  advice  and  consent 
of  the  Senate.  They  should  be  under  its  educa- 
tional department,  in  connection  with  its  penal  de- 
partment, so  that  graduates  may  be  either  discharged 
into  social  freedom,  or  passed  on  into  reformatories, 
according  to  the  fitness  or  requirements  of  the  in- 
dividual. They  should  be  built  on  good  farming 
land,  which  can  be  cultivated  by  the  pupils,  to 
decrease  the  cost  of  maintenance,  and  to  afford 
opportunity  for  outdoor  agricultural  employment, 
for  both  hygienic  and  educational  reasons.  They 


294  The  Science  of  Penology 

should  be  constructed  on  the  cottage  plan,  in  order 
to  permit  the  necessary  subdivision  and  classifica- 
tion of  the  pupils  according  to  age,  capacity,  and 
natural  or  acquired  character  or  disposition,  and  to 
secure,  so  far  as  is  possible  in  a  public  institution,  a 
family  life.  Each  cottage  should  accommodate  not 
over  fifty  pupils  with  their  matron  and  teachers,  and 
contain  schoolrooms  and  dormitories.  A  pleasant 
outdoor  playground,  a  gymnasium  for  indoor  ex- 
ercise, shops  for  industrial  training,  and  a  chapel  for 
religious  and  literary  exercises  are  necessities  of  the 
institution.  The  general  design  should  be  for  ed- 
ucational rather  than  reformatory  purposes,  with- 
out walls  or  prison  features,  and  the  school  should 
be  named  in  honor  of  some  distinguished  person  in 
order  to  avoid  as  much  as  possible  any  stigma  of 
the  prison. 

Schools  for  boys  should  be  located  in  a  different 
section  of  the  State  from  those  for  girls.  Both 
should  be  designed  to  train  the  children  for  useful, 
self-supporting  lives,  and  to  promote  development 
in  the  three  elements  of  character.  To  them  mag- 
istrates should  commit  all  arrested  children  who 
cannot  be  trusted  at  liberty  on  probation,  or  who 
have  no  homes  or  proper  parental  care,  under  an 
indeterminate  sentence.  Inmates  who  pass  through 
the  upper  grades,  or  reach  the  age  of  sixteen,  with- 
out giving  satisfactory  evidence  of  their  fitness  for 
an  honest  social  life,  should  be  transferred  to  a 
reformatory. 

Reformatories  should   also  be  built,  maintained, 


Penal  and  Reformatory  Institutions    295 


and  governed  by  the  State,  through  its  commis- 
sioner of  prisons.  They  ought  to  be  situated  in 
healthy  localities,  with  a  bountiful  supply  of  good 
water,  and  adequate  drainage  and  sewage  system. 
Much  of  the  work  of  construction  can  be  done  by 
the  prisoners.  The  location  should  be  convenient 
of  access  from  the  large  centres  of  population,  in 
order  to  reduce  transportation  charges.  The  re- 
formatory grounds  must  be  spacious,  and  enclosed 
by  a  wall  to  secure  the  prisoners.  Within  this 
enclosure  there  should  be  separate  cell  accommoda- 
tions for  every  prisoner,  arranged  for  their  neces- 
sary classification  and  the  separation  of  the  various 
classes  of  criminals  ;  workshops  for  instruction  in 
trades ;  kitchens,  store-  and  eating-rooms  ;  school- 
rooms ;  chapel,  gymnasium,  hospital,  baths,  and 
drill-shed,  besides  the  general  offices  and  accom- 
modation for  the  warden  and  his  chiefs  of  depart- 
ments, or  staff.  They  must  have  sufficient  capacity 
to  receive  all  incorrigibles  from  the  industrial 
schools,  and  all  the  convicted  first  offenders  from 
all  the  courts  of  the  State.  As  the  object  of  re- 
formation is  the  making  of  good  citizens  out  of 
bad  ones  no  expense  should  be  spared  in  providing 
every  approved  device  for  promoting  this  result. 
The  State  cannot  afford  to  be  penurious  in  supply- 
ing means  to  accomplish  this  supremely  important 
object. 

The  efficiency  and  success  of  the  reformatory 
will  be  chiefly  dependent  upon  the  capacity  and  zeal 
of  the  superintendent.  Unless  he  is  thoroughly 


296  The  Science  of  Penology 


inspired  with  the  philanthropic  spirit  of  the  reform- 
atory work,  and  has  unbounded  faith  in  the 
practical  means  adopted  for  carrying  it  on  upon 
the  subjects  in  his  charge,  combined  with  a  high 
character,  the  most  lavish  expenditures  and  wisest 
plans  will  prove  barren  and  unsatisfactory.  No 
question  of  salary,  nor  any  other  obstacle  which  can 
be  overcome,  should  prevent  the  securing  and 
retention  of  the  very  highest  talent  for  the  man- 
agement of  an  institution  intended  for  the  re- 
formation of  dangerous  citizens.  The  welfare  of 
the  State  and  the  salvation  of  these  prisoners  in 
this  world  and  in  eternity  hang  largely  on  the 
wisdom,  skill,  and  earnestness  of  the  superin- 
tendent. When  an  efficient  superintendent  has 
been  fourid,  he  ought  to  be  allowed  the  largest 
liberty  of  action  and  the  unrestricted  choice  of  his 
subordinates  ;  receive  the  cordial  support  of  his 
managers,  and  be  secure  in  the  tenure  of  his  office 
during  successful  administration.  He  needs  to  be 
assisted  by  medical,  physical,  industrial,  mental, 
and  moral  directors,  in  charge  of  these  several  de- 
partments, and  by  a  commissary  or  steward  of  the 
stores  and  diet,  whom  he  should  appoint,  and  for 
whose  honesty  and  ability  he  should  be  responsible. 
Reformatories  for  females  should  be  situated  in 
secluded  country  locations,  and  adapted  to  the  pe- 
culiar requirements  of  the  sex  in  reformation  and 
employment.  They  should  be  managed  entirely 
by  women  of  approved  ability  and  character.  As 
many  of  the  inmates  will  be  unmarried  mothers,  it 


Penal  and  Reformatory  Institutions    297 


will  be  advantageous  to  combine  with  the  female 
reformatory  the  care  of  illegitimate,  deserted,  and 
orphan  infants.  This  will  afford  congenial  and 
suitable  employment  for  many  of  the  prisoners, 
to  which  they  may  be  assigned  by  the  matron,  and 
thus  assist  in  their  reformation  and  instruction, 
while  providing  State  care  for  this  large  class  of 
dependents,  now  left  to  the  vicissitudes  of  private 
charity.  The  orphanage  should  be  constituted  as 
a  separate  department,  although  within  the  en- 
closure of  the  reformatory.  Commitments  should 
be  received  from  poor  directors  and  the  board  of 
children's  aid,  as  well  as  from  courts. 

The  female  reformatory  will  naturally  become 
the  asylum  for  prostitutes,  to  which  all  those  ar- 
rested for  street-walking  and  prostitution  must  be 
committed  under  the  indeterminate  sentence  until 
they  are  cured,  and  honest  employment  has  been 
secured  for  them.  A  separate  department  for 
them  will  be  necessary  in  order  to  prevent  further 
corruption  of  the  character  of  others  in  a  receptive 
condition,  from  the  contagion  of  general  criminal 
depravity  which  will  occur  if  promiscuous  inter- 
course should  be  allowed  among  the  prisoners. 

Inebriate  Asylums. — Although  the  drunkard  is  an 
offender  against  the  social  welfare,  depraved  in 
character,  deficient  in  self-control  and  will-power  in 
respect  to  his  particular  fault,  he  is  not  necessarily, 
or  indeed  generally ,  when  sober,  of  an  otherwise 
criminal  disposition.  His  confinement  is  necessary 
both  for  the  protection  of  society  against  him  and 


298  The  Science  of  Penology 


for  its  own  protection  from  himself.  It  should  be 
rather  hospital  than  prison  confinement — a  com- 
mitment until  cured.  The  chief  considerations, 
therefore,  which  ought  to  determine  the  location  of 
the  inebriate  asylum  are  sanitary.  It  should  be  in 
a  healthy,  well-drained  country,  distant  from  cities 
and  large  towns,  with  a  spacious  enclosure,  and 
plenty  of  land  for  farm  and  garden  cultivation.  It 
should  be  constructed  more  on  the  hospital  than 
the  prison  idea,  and  present  an  attractive  rather 
than  a  repulsive  appearance.  Escapes  must  be 
prevented  more  by  persuasion  than  constraint.  Two 
distinct  departments  are  necessary,  one  for  those 
who  pay  for  their  treatment,  and  the  other  for  the 
indigent.  In  the  first,  such  comforts  and  enjoy- 
ments as  can  be  afforded  should  be  furnished,  with 
exercise,  amusements,  entertainments,  and  employ- 
ments which  will  conduce  to  health  and  content- 
ment. The  indigent  must  be  employed  in  productive 
labor  according  to  their  various  capacities,  and  a 
portion  of  their  earnings  from  it,  after  defraying 
the  cost  of  their  treatment,  should  be  credited  to 
each  for  the  use  of  dependent  relatives,  or  their 
own  future  support. 

The  only  restrictions  necessary  will  be  confine- 
ment to  the  asylum  limits,  obedience  to  asylum 
rules,  abstinence  from  intoxicants,  and  useful  work. 
If  the  latter  is  judiciously  managed  the  asylum  can 
be  made  largely  self-supporting,  and  the  public  thus 
relieved  from  the  immense  burden  imposed  upon  it 
by  the  existing  absurd  methods  of  dealing  with 


Penal  and  Reformatory  Institutions    299 


drunkards.  To  this  end  the  asylum  must  be 
located  and  built  with  a  view  of  conducting  such 
industries  as  will  be  most  productive  and  profitable. 
Work,  the  inculcation  of  the  habit  of  regular  useful 
work,  moreover,  is  one  of  the  most  beneficial 
curative  processes  which  can  be  applied  to  the 
drunkard. 

The  superintendent  should  be  a  medical  expert 
in  the  disease  of  drunkenness,  and  have  authority 
to  decide  upon  the  cure  and  discharge  of  prisoners. 
He  must  be  allowed  the  selection  and  discharge  of 
his  chiefs  of  departments,  and  all  the  employees  of 
the  asylum.  He  should  be  held  responsible  for  the 
custody  of  all  the  inmates,  the  success  of  his  cura- 
tive treatment,  and  the  economy  of  his  administra- 
tion, with  full  discretionary  authority  and  freedom 
of  action,  to  secure  the  best  results. 

Criminal  Insane  Asylums. — These  institutions 
ought  to  have  the  general  plan  of  hospitals  for  the 
insane,  with  prison  security  in  addition.  In  States 
where  the  number  of  criminal  insane  and  insane 
convicts  warrants  a  separate  institution  and  organi- 
zation, they  ought  to  be  distinct  from  both  the  or- 
dinary hospital  for  the  insane  and  the  prison. 
They  should  be  separate  from  the  former  to  pre- 
vent any  odium  of  criminal  association  from  be- 
coming connected  with  the  general  hospital,  and  to 
secure  the  more  stringent  discipline  and  perfect 
security  necessary  for  the  insane  criminal ;  from  the 
latter,  because  their  proper  management  requires  a 
professional  alienist  rather  than  a  warden ;  and 


300  The  Science  of  Penology 


because  they  must  provide  care  for  the  unconvicted 
criminal  insane,  who  cannot  justly  be  sent  to  prison 
and  stigmatized  as  convicts  on  an  accusation  of 
possibly  a  single  act  done  in  an  insane  and  irre- 
sponsible condition.  They  must  be  so  constructed 
as  to  secure  complete  separation  of  the  sexes,  as 
well  as  that  of  the  wards  of  the  insane  convicts 
from  those  of  the  criminal  insane,  who  are  of  a 
very  different  class.  The  wards  must  be  of  fire-proof 
construction,  and  not  more  than  two  stories  high, 
with  suitable  exercising  grounds,  securely  walled. 
A  larger  number  of  attendants  and  guards  than  is 
necessary  either  in  the  general  hospital  or  prison 
will  be  required,  both  for  the  safety  of  the  inmates 
and  the  prevention  of  escapes.  Economy  in  con- 
struction and  administration  is  especially  important, 
as  little  productive  labor,  beyond  the  work  of  the 
institution,  and  in  its  garden  and  grounds,  can  be 
expected  from  this  class  of  prisoners.  The  average 
duration  of  confinement  is  longer,  and  the  expense 
of  maintenance  greater  than  in  the  penitentiary  ; 
although  this  expense  need  not  be  as  great  as  in 
the  general  hospital.  Adequate  infirmaries  are 
necessary  because  the  proportion  of  physical  disease 
and  death  is  large  in  this  class. 

In  the  larger  States,  where  the  number  of  insane 
convicts  is  great  enough  to  warrant  an  independ- 
ent institution,  a  hospital  for  their  sole  treatment 
can  be  economically  established  within  the  walls 
of  the  penitentiary,  and  placed  in  charge  of  an 
alienist ;  and  in  such  States  a  separate  hospital 


Penal  and  Reformatory  Institutions    301 


for  the  criminal  insane  who  have  not  been  con- 
victed should  be  maintained. 

Penitentiaries.  —  The  penitentiary  must  abso- 
lutely, positively,  and  finally  close  the  criminal 
career  of  every  one  who  passes  within  its  doors. 
When  the  State  has  exhausted  its  efforts  of  reform- 
ation, finds  its  mercy  despised,  and  is  compelled 
to  decide  that  its  prisoner  is  incorrigibly  danger- 
ous, he  must  be  shut  up  there  for  the  rest  of  his 
natural  days  ;  and  be  compelled  to  make  the  best 
restitution  he  can  by  his  labor  to  the  society  which 
he  has  abused  and  forced  to  support  him.  Mur- 
derers and  all  those  gross  culprits  who  have  in- 
curred life  sentences,  with  the  moral  imbeciles  and 
incorrigibles  who  graduate  from  the  reformatories, 
constitute  the  population  of  the  penitentiary.  This 
is,  then,  the  final  shift  of  the  incurable  chronic 
criminal.  Its  prisoners  in  this  respect  are  all  of 
one  degree  of  criminality, — they  have  passed  be- 
yond the  danger  of  contamination  ;  there  is  no  need 
for  their  separation,  except  for  discipline  and  con- 
trol. Their  education  is  done  ;  nothing  remains 
for  the  State  to  do  but  to  hold  them  securely  and 
work  them  profitably  with  humane  but  unrelent- 
ing firmness. 

Security  and  economy  are  the  controlling  mo- 
tives in  the  location,  construction,  and  adminis- 
tration of  the  penitentiary.  The  location  must, 
therefore,  be  convenient  to  the  larger  centres  of 
population  whence  the  prisoners  are  derived,  where 
raw  materials  for  manufacture  are  cheapest  and 


302  The  Science  of  Penology 


best  procured,  where  the  largest  market  exists 
for  their  products,  and  the  price  of  supplies  for 
maintenance  is  lowest.  Natural  advantages  for 

o 

manufactures  and  industries  suitable  to  local  cir- 
cumstances ought  to  receive  large  consideration 
in  deciding  upon  the  location.  Good  drainage,  a 
plentiful  supply  of  pure  water,  and  a  dry,  pure 
atmosphere  are  necessary  to  the  health  of  the 
prisoners,  which  must  be  carefully  protected,  from 
motives  both  of  humanity  and  economy.  Strong 
and  healthy  prisoners  cost  less  than  sickly  ones, 
and  earn  more. 

The  enclosure  must  be  spacious  for  the  proposed 
population,  walled  on  all  sides,  and  contain  an 
administration  building,  cell  houses,  dining-rooms, 
a  chapel,  an  amusement  hall,  workshops,  spray- 
bathhouses,  a  gymnasium,  and  play  and  parade 
grounds.  After  a  cell  house  has  been  built  most 
of  these  accommodations  can  be  constructed  by 
the  prisoners.  As  the  prisoners  are  to  spend  the 
remainder  of  their  lives  there,  they  must  be  made 
reasonably  confortable  in  their  quarters,  clothing, 
and  treatment ;  and  made  satisfied  with  a  good, 
healthy,  and  wholesome  diet.  Cleanliness,  neat- 
ness, and  order  in  quarters,  person,  and  at  table 
must  be  scrupulously  maintained  by  the  prisoners 
and  enforced  by  the  warden.  A  full  day's  work 
must  be  exacted  of  every  prisoner  according  to 
his  ability  and  skill.  While  a  strict  and  stern  dis- 
cipline is  necessary,  all  cruelty  of  punishment  and 
unnecessary  severity  should  be  avoided.  All  that 


Penal  and  Reformatory  Institutions   303 


the  State  requires  from  the  warden  is  safety  from 
his  wards,  and  the  greatest  possible  relief  from  the 
burden  of  the  cost  of  their  confinement.  All  the 
penalty  or  punishment  it  exacts  is  the  deprivation 
of  liberty,  and  work  for  the  public,  and  this  will 
make  the  laws  as  efficacious  in  the  restraint  of  the 
criminally  disposed  who  are  at  liberty  as  it  is 
possible  to  make  them. 

All  prisoners  must  be  made  to  understand  that 
they  are  confined  for  the  safety  of  society  ;  and 
that  their  own  comfort  and  pleasure  has  been  will- 
fully forfeited  by  their  acts. 

No  beneficial  results,  however,  can  be  expected 
from  unnecessary  humiliations  and  requirements 
which  tend  to  destroy  any  self-respect  remain- 
ing in  the  character.  The  lock-step,  prohibition  of 
talking  on  all  occasions,  turning  the  head  away  in 
marching  past,  and  some  other  ordinary  prison 
rules  are  better  enforced  as  disciplinary  measures 
for  bad  deportment  in  the  prison  than  as  general 
rules.  When  convicts  are  first  received,  they 
should  be  bathed,  shaved,  have  their  hair  cut,  be 
clothed  in  the  uniform  of  the  intermediate  grade, 
and  have  their  Bertillon  card  and  photograph 
taken.  Having  been  assigned  to  the  intermediate 
grade,  it  will  be  explained  to  them  that  they  can 
obtain  promotion  to  the  first  grade  with  increased 
privileges  and  comforts  for  good  behavior ;  and 
that  they  will  be  reduced  to  the  lower  grade, 
where  the  privileges  and  comforts  are  less  and  the 
discipline  more  strict  and  disagreeable,  for  bad 


304  The  Science  of  Penology 

behavior.  Each  grade  should  have  its  special 
uniform,  and  be  subdivided  into  classes  according 
to  similarity  of  character  and  ability  to  work. 

Corporal  punishments  are  prohibited  in  some 
States,  and  ought  not  to  be  generally  used,  but 
there  are  always  some  convicts  so  entirely  devoid 
of  moral  sense  and  reason  that  it  is  impossible  to 
govern  them  except  by  fear  of  pain ;  for  such, 
spanking  with  the  paddle  of  leather  under  the  eye 
of  the  warden,  and  not  until  the  next  day  after 
the  offense,  has  been  proved  to  be  most  fruitful  of 
good  results. 

The  prison  diet  should  be  plain  and  economical ; 
but  the  food  should  be  wholesome,  nutritious, 
well  cooked,  neatly  served,  and  of  such  variety  as 
will  best  preserve  the  appetite.  The  quantity  of 
the  ration  must  be  carefully  apportioned  to  the 
maintenance  of  the  health  and  strength  of  the 

o 

several  classes,  and  proper  time  allowed  for  eating 
it.  Few  single  items  in  the  discipline  of  prisons 
have  a  greater  influence  on  the  demeanor  and  con- 
duct of  the  prisoners  than  the  way  in  which  they 
are  fed.  A  spirit  of  discontent,  insubordination, 
and  rebellion  is  more  easily  fomented  by  the  preval- 
ence of  an  opinion  that  this  almost  solitary  right 
remaining  to  them,  the  right  of  a  healthy  main- 
tenance, is  being  unjustly  impaired  by  the  manage- 
ment, than  in  any  other  way. 

The  warden  of  a  large  penitentiary  must  needs 
be  a  man  of  strong  personality  and  large  experi- 
ence and  training.  He  will  have  to  manage,  with 


Penal  and  Reformatory  Institutions    305 


a  few  assistants,  a  mass  of  the  most  uncontrollable 
and  refractory  elements  of  society.  But  few  men 
are  capable  of  discharging  these  duties  with  suc- 
cess. When  a  good  warden  has  been  discovered 
he  should  remain  secure  in  his  position,  without 
fear  of  removal  for  any  cause  outside  of  his  own 
management.  He  should  combine  ability  to  con- 
trol his  prisoners  and  to  employ  them  to  the 
public  advantage ;  qualities  that  are  not  often 
found  in  conjunction.  The  objective  purpose  of 
the  penitentiary  is  wholly  economical.  Its  de- 
signs, appliances,  conveniences,  and  administra- 
tion ought  all  to  subserve  this  end  as  entirely 
as  in  any  industrial  establishment  constructed  for 
profit,  with  free  labor. 

There  should  be  regularly  instituted  in  all  penal 
and  reformatory  institutions  a  laboratory  for  the 
scientific  study  of  criminology ;  of  which  the  Ber- 
tillon  system  of  identification  should  be  a  part. 
Whatever  differences  of  opinion  may  exist  concern- 
ing the  comparative  forces  of  heredity  and  environ- 
ment in  the  production  of  criminals,  no  one  denies 
that  the  criminal  is  a  variation  from  the  honest, 
sane,  normal  human  being.  In  Europe,  learned 
men  like  Lombroso  and  Ferri  have  made  exhaust- 
ive anthropological  and  sociological  investigations 
concerning  many  thousands  of  convicts,  which 
afford  almost  our  only  data  for  the  study  of  the 
disease  of  criminality  in  America,  except  those  of 
Miss  F.  A.  Kellor.  Our  social,  religious,  indus- 
trial, political,  and  climatic  conditions  are  so  very 


306  The  Science  of  Penology 


different  from  the  European,  our  population  com- 
posed of  such  a  unique  and  cosmopolitan  com- 
mingling of  races,  that  a  novel  type  might  naturally 
be  expected  to  be  developed  ;  and  the  existence  of  a 
great  black  race  intermingled,  but  distinct,  in  our 
midst  renders  it  absolutely  necessary  to  an  intelli- 
gent application  of  remedies  that  we  should  carefully 
study  the  disease  as  it  is  manifested  here  among  our 
own  people  and  in  our  own  land.  This  subject  has 
received  the  consideration  of  our  penologists.  A 
committee  of  the  National  Prison  Association  made 
this  recommendation  at  the  congress  of  1900  : 

"  A  laboratory,  furnished  with  the  best  modern  instruments 
of  precision,  conducted  by  a  specialist  or  trained  observer, 
for  the  scientific  study  of  prison  populations,  with  special 
reference  to  special  obvious  needs  of  the  administration  in 
the  discipline,  instruction,  and  training  of  prisoners.  These 
studies  would  be  : — Physical  :  the  anatomy  and  physiology  of 
prisoners  ;  measurements  of  sensation  and  other  manifesta- 
tions of  mind  through  the  body  ;  and  the  hereditary  factors. 
Psychical  :  the  mental,  emotional,  voluntary  life  activities  ; 
the  tastes,  ideas,  knowledge,  motives.  Social  :  the  domestic, 
industrial,  neighborhood,  legal,  political,  and  religious  en- 
vironment which  have  influenced  the  character  and  conduct. 
We  know  that  all  these  factors  enter  into  every  life  and  help 
to  shape  it,  and  that  no  one  of  them  taken  alone  is  sufficient 
for  an  explanation."  ' 

This  recommendation  was  heartily  and  unani- 
mously approved  by  the  congress.  Such  labora- 
tories could  be  conducted  by  the  medical  officer  of 
the  prison,  after  a  few  months  of  special  training, 

1  "  Prison  Laboratories,"  Prof.  C.  R.  Henderson,  American  Journal 
of  Sociology,  November,  1900. 


Penal  and  Reformatory  Institutions    307 


and  would  greatly  enlarge  the  field  of  his  research 
and  ambition,  and  assist  much  in  his  professional 
success.  They  would  not  be  expensive  for  equip- 
ment, and  would  afford  occupation  for  some  of 
the  better  educated  and  more  intelligent  prison- 
ers. The  possible  social  value  of  a  systematic, 
general,  and  continual  examination  of  convicts  all 
over  the  country,  and  of  the  statistics  which  would 
be  reliably  collected,  can  hardly  be  overestimated. 
These  laboratories  would  also  increase  the  ac- 
curacy and  use  of  the  Bertillon  signalments,  and 
assist  in  the  identification  of  arrested  suspects. 
They  would  contribute  much  toward  establishing 
Penology  as  an  exact  science,  and  toward  that 
accuracy  of  diagnosis  which  is  essential  to  a  suc- 
cessful system  of  therapeutics. 

With  these  eight  kinds  of  institutions,  thus 
established  and  administered,  and  all  the  officials, 
constables,  police,  lawyers,  probation  officers, 
judges,  and  prison  commissioners  intelligently  co- 
operating, the  public  contest  with  criminality  will 
be  conducted  with  the  greatest  economy,  the  num- 
bers of  the  public  enemies  most  rapidly  reduced, 
and  their  active  hostilities  most  effectually  re- 
strained. In  order  to  achieve  a  complete  and 
lasting  triumph,  it  only  remains  for  society  to 
systematize  its  efforts  upon  scientific  principles  at 
the  sources  which  constantly  supply  the  unending 
stream  of  criminals  who  wage  this  war  ;  to  substitute 
the  "  ounce  of  prevention  "  for  the  "  pound  of  cure." 
We  will  now  proceed  to  explain  this  system. 


SECTION  III. 
HYGIENICS. 


309 


CHAPTER  XVI. 

POLICE    PREVENTION.       PROHIBITION    OF    THE 
MARRIAGE    OF    THE    UNFIT. 

Excessive  Arrests  —  Proportion  of  Convictions  to  Arrests  —  Illustrated  by 
Boston  Statistics  —  Possible  Saving — Municipal  Police  a  Survival  of 
Medieval  Necessities — Has  Become  the  Chief  Instrument  of  Enforcing 
Law  —  Logically  a  State  Force  —  Should  Execute  all  Constabulary 
Functions — Its  Use  in  Riots — Organization  and  Discipline  —  Relief  of 
the  Military — Other  Advantages — Care  over  Children  in  Public  Places 
— The  Prohibition  of  the  Marriage  of  the  Unfit — Constitutional  Power 
of  the  State — Heredity  —  The  Contrast  of  the  Edwards  and  the  Jukes 
Families  —  Such  Processes  Constant  —  The  Preventive  Legislation 
Necessary — Advantages  to  be  Secured. 

THE  number  of  transgressors  detected  and  ar- 
rested by  the  officers  of  the  law  is  enormously 
disproportionate  both  to  the  crimes  committed  and 
to  the  number  convicted.  It  is  probable  that  the 
number  of  arrests  annually  made  in  the  United 
States  is  ten  times  greater  than  the  number  of  per- 
sons sentenced  to  reformatory  or  penal  institu- 
tions, although  no  person  is  ordinarily  arrested 
unless  there  has  been  a  violation  of  law  of  which  it 
is  reasonably  certain  he  is  guilty.  Many  of  these 
arrests  are  of  the  same  person  for  repetitions  of 
the  same  offense  ;  a  large  proportion  of  them  are 
for  minor  offenses  which  do  not  incur  imprison- 
ment ;  but  scarcely  one  in  three  even,  of  those  ar- 

3" 


312  The  Science  of  Penology 

rested  for  serious  crimes,  is  convicted.  Most  of 
the  energies  of  the  police  are  expended  in  watch- 
ing and  placing  under  temporary  restraint  the 
"  rounders "  who  habitually  disturb  public  order 
whenever  they  are  at  liberty.  This  is  not  only  a 
great  waste  of  public  money,  unnecessarily  occupy- 
ing the  time  and  attention  which  should  be  given  to 
more  important  matters,  but  it  discourages  honest 
and  vigilant  officers  from  faithfully  discharging 
their  duty. 

The  police  reports  of  the  thirty-eight  cities  in  the 
United  States  having  a  population  in  1900  of  over 
100,000  each,  a  total  of  14,208,603,  show  that  there 
were  641,991  arrests  made,  but  only  29,501  con- 
victions for  felonies  in  1899,  or  during  the  year 
reported,  which  ended  near  the  close  of  that  year.1 
If  the  121  other  cities  having  over  25,000  inhabi- 
tants each,  which  have  a  population  of  5,486,022, 
had  the  same  ratio  of  arrests  to  their  population 
and  the  same  proportion  of  convictions  to  arrests, 
there  were  889,890  arrests  in  the  cities  of  this 
country  and  only  40,815  convictions  for  felonies. 
If  we  add  to  these  totals  ten  per  cent,  for  those 
arrested,  and  ten  per  cent,  to  the  number  convicted, 
upon  the  assumption  that  ninety  per  cent,  of  the 
total  criminality  comes  from  the  city  population, 
the  total  number  of  arrests  in  the  United  States 
during  1899  was  978,879  ;  while  the  convictions 
for  high  crimes  and  felonies  only  numbered  about 
44,897.  At  the  same  average  cost  of  $50,  for  each 

1  See  Appendix  A. 


Police  Prevention  313 


arrest  as  obtained  in  Massachusetts  during  1899^ 
these  substantially  barren  arrests  cost  the  people 
of  this  country  $46,700,000  in  taxation  during  the 
year.  But  this  largely  needless  waste  of  funds  is 
much  less  than  the  indirect  and  consequential  dam- 
ages which  this  irrational  treatment  of  criminals 
inflicts  upon  the  people  by  its  encouragement  and 
cultivation  of  criminality.  An  arrest  signifies  that 
the  proper  official  has  discovered  a  case  of  crime 
and  brought  it  before  the  magistrate.  If  the 
offense  is  a  misdemeanor,  or  is  drunkenness,  a 
small  fine  and  a  sentence  of  a  few  days  in  jail  are 
imposed,  after  which  the  patient  resumes  his  former 
life  with  his  reputation  stained,  his  self-respect 
weakened,  and  some  of  the  restraint  which  be- 
fore surrounded  him,  lost.  The  short  imprison- 
ment has  broken  down  his  dread  of  jail,  brought 
him  into  contact  with  many  worse  than  himself 
and  confirmed  his  moral  depravity.  He  comes 
out  worse  than  when  he  went  in. 

The  relations  between  law  and  criminality  in  the 
United  States  are  well  illustrated  by  the  records  of 
the  Police  Department  of  the  city  of  Boston, 
Mass.  During  1899  the  police  of  Boston  arrested 
39,760  offenders2;  23,875  of  these  were  arrested 
for  drunkenness,  9941  of  whom  were  convicted; 
and  2708  for  assault  of  various  kinds,  mostly  due, 
probably,  to  intoxication,  1 795  of  whom  were  con- 
victed. These  two  classes  constituted  66.85  Per 

1  See  Chapter  I.,  p.  n. 

3  Report  of  Board  of  Police,  City  of  Boston,  Dec.,  1899. 


The  Science  of  Penology 


cent,  of  the  arrests,  and  61.91  per  cent,  of  the 
convictions.  There  were  arrested  for  "  simple 
larceny,"  1741,  of  whom  1506  were  convicted  ; 
for  "violations  of  city  ordinances,"  1395,  of  whom 
1 1 70  were  convicted;  "  suspicious  persons,"  1999, 
none  convicted  ;  "  vagrants  and  tramps,"  459,  of 
whom  384  were  convicted  ;  "  idle  and  disorderly 
persons,"  614,  of  whom  182  were  convicted  ; 
"  neglected  children,"  1 78,  and  1 29  convicted  ; 
"  runaways,"  192,  and  4  convicted  ;  "  stubborn 
children,"  137,  and  129  convicted  ;  "  malicious 
mischief"  and  "trespass,"  243,  and  175  convicted; 
"offenses  against  the  license  laws,"  383,  and  243 
convicted  ;  other  misdemeanors,  2001,  and  891 
convicted  ;  a  total  of  9342,  or  23.5  per  cent,  of  the 
arrests,  of  whom  3642,  or  39  per  cent.,  were  con- 
victed, being  19.3  per  cent,  of  the  total  convictions. 
The  remaining  9.65  per  cent,  of  arrests  furnished 
1 8. 2  per  cent,  of  the  convictions,  and  included 
those  charged  with  "  offenses  against  the  person," 
199,  of  whom  77  were  convicted  ;  "  offenses  against 
property,  with  violence,"  675,  of  whom  234  were 
convicted  ;  "  offenses  against  property,  without 
violence,"  915,  of  whom  503  were  convicted  ;  "  ar- 
son," 19,  of  whom  none  were  convicted  ;  "  for- 
gery and  offenses  against  the  currency,"  70,  of 
whom  15  were  convicted;  "offenses  against  chas- 
tity and  morality,"  743,  of  whom  431  were 
convicted  ;"  gambling,"  1114,  of  whom  985  were 
convicted  ;  a  total  of  3735,  of  whom  2245,  or  60.4 
per  cent.,  were  convicted.  Of  the  total  number  of 


Police  Prevention  315 


arrests,  18,794,  or  47.2  per  cent.,  were  convicted. 
Of  those  arrested,  1 2,92 1  persons,  or  39.49  per  cent., 
were  fined  $113,897.91  ;  and  2880  persons,  or  7.2 
per  cent,  of  thdse  arrested,  were  imprisoned  for  an 
aggregate  of  1861  years  and  7  months,  involving 
the  State  in  an  expense  of  $242,000  for  prison 
costs,  at  the  average  cost  of  $130  per  year.1  Only 
5.9  per  cent.,  or  2319,  of  those  arrested  were  placed 
on  probation.  There  were  157  different  crimes  or 
offenses  charged  against  those  arrested. 

Assuming  that  fifty  per  cent,  of  the  million  of 
arrests  (in  round  numbers)  made  annually  in  the 
United  States  were  recidivists,  the  officers  of 
the  law  would  be  relieved  of  one  half  their  work, 
the  trouble  and  danger  of  making  a  half-million 
arrests,  society  of  half  the  cost  of  the  criminal 
class,  and  most  of  its  suffering  and  apprehension 
(since  the  recidivist  commits  most  of  the  heinous 
crimes),  by  the  permanent  confinement  of  all  this 
category,  as  scientific  Penology  requires.  Josiah 
Flynt  estimates  that  there  are  sixty  thousand  tramps 
alone  in  America,  living  without  work,  contributing 
to  the  social  sense  of  insecurity  and  the  necessity  of 
police  protection.  There  need  not  be  one  at  large. 
The  seclusion  of  recidivists  and  tramps  could  be 
very  speedily  accomplished.  Relieved  thus  of  the 
hardest  half  of  its  task,  the  police  force  might  be 
very  considerably  reduced  in  numbers  with  safety. 
The  remainder  could  be  greatly  improved  in 
personnel  by  selection,  and  the  stimulus  of  a  higher 

1  Massachusetts  Prison  Association  Bulletin  No.  12,  p.  5. 


316  The  Science  of  Penology 


rate  of  pay,  at  a  very  great  decrease  of  cost.  Its 
attention  could  be  chiefly  directed  to  the  preven- 
tion of  crime,  and  the  correction  of  the  incipient 
tendencies  of  unrestrained  children  and  youths 
towards  those  vicious  and  offensive  practices  which, 
unchecked,  develop  the  criminal.  The  proper 
office  and  function  of  the  police,  indeed,  is  pre- 
vention rather  than  detection  and  arrest,  which 
are  popularly  understood  and  interpreted  by  the 
force  itself  to  be  its  special  duties. 

The  municipal  police  force  as  it  exists  is  the 
natural  product  of  the  peculiar  necessities  of  the 
primary  social  organization  into  cities.  It  is  an 
outgrowth  and  development  of  the  ancient  "  night 
watch,"  organized  by  citizens  for  local  protection. 
Having  everywhere  a  local  origin  and  organiza- 
tion, antedating  general  government,  it  has  main- 
tained its  municipal  character  and  independence 
of  the  State,  while  the  recent  tremendous  con- 
centration of  population  and  property  in  cities  has 
made  these  local  organizations  the  principal  execu- 
tive agencies  for  the  enforcement  of  the  criminal 
laws  of  the  State.  We  have  stated  before  that 
ninety  per  cent,  of  the  crime  is  committed,  and 
ninety  per  cent,  of  the  criminals  are  arrested  in 
cities.  By  the  logic  of  civilization  and  the  science 
of  Penology,  the  municipal  police  force  is  recog- 
nized as  the  actual  hand  of  the  law  which  the 
State  lays  on  those  who  violate  it,  or  endanger 
the  social  welfare.  It  has  become  the  immediate 
ostensible  representative  of  government  among 


Police  Prevention  Z17 


the  people.  Its  uniform  and  authority  are  re- 
spected and  obeyed  as  the  local  power  of  law. 
Indeed,  recent  immigrants  who  come  from  lands 
where  only  "  the  man  in  uniform  "  represents  the 
State,  and  who  compose  a  large  proportion  of  our 
dangerous  class,  pay  small  heed  to  any  officer 
except  a  policeman. 

The  time  has  arrived  in  this  country  when  it  is 
necessary  for  the  lawmaking  power  to  assume  the 
command  and  control  of  this  principal  means  of 
its  execution.  The  municipal  police  must  be  made 
legally  what  it  is  logically,  and  in  fact,  a  force  of 
the  State.  Intelligently  organized  by  a  general 
law  distributing  its  numbers  according  to  the 
density  and  needs  of  various  communities,  both 
the  economy  and  efficiency  of  its  maintenance 
would  be  remarkably  increased.  Such  an  organ- 
ization would  afford  the  State  a  rational  and  com- 
plete means  of  enforcing  law  in  all  parts  of  its 
territory  with  uniformity  of  execution.  It  would 
enable  the  State  to  bring  the  whole  of  its  power 
to  bear  with  an  equal  pressure  upon  all  of  the 
hostile  elements  within  its  borders,  and  extend  its 
influence  into  every  department  of  social  life. 
The  hand  of  the  governor  would  be  seen  and,  if 
necessary,  felt  everywhere.  This  is  the  simplest 
way  to  enable  him  to  discharge  the  duty  of  faith- 
fully executing  all  the  law  in  all  his  domain,  which 
is  imposed  upon  his  office,  and  he  could  be  held 
responsible  for  all  failures.  Friction  and  conflict 
between  local  and  State  authority  would  cease, 


3*8  The  Science  of  Penology 

and  a  harmonious  process  of  executive  functions 
proceed  through  all  ranks  of  authority,  from  its 
head  down  to  the  private  citizen. 

Upon  a  State  police  could  be  devolved  the  func- 
tions and  duties  of  constables.  Thus  the  very 
grievous  abuses  which  have  gathered  about  this 
antique  relic  of  early  civilization  might  be  at  once 
abated.  The  election,  through  the  political  influ- 
ence of  law-breakers,  of  corrupt  and  venal  con- 
stables for  the  purpose  of  securing  immunity  and 
license  would  cease ;  and  the  abolition  of  the 
pernicious  fee  system,  by  which  they  are  now  sup- 
ported, would  follow.  The  military  discipline  re-< 
quired  in  such  a  force  would  assure  honest  and 
correct  reports  to  the  courts,  instead  of  the  per- 
jured statements  now  so  commonly  made  by  con- 
stables, and  the  people  would  no  longer  be  harrassed 
by  arrests  upon  frivolous  pretexts  for  the  sake  of 
the  fees.  Members  of  the  force  could  be  detailed 
by  the  local  commander  to  the  various  magistrates 
to  perform  the  duties  of  constables. 

In  case  of  tumult  and  riot  a  well  drilled  and  uni- 
formed force  could  be  speedily  concentrated  for  its 
repression.  Railroads,  telegraphs,  and  telephones 
ought  to  be  used  by  the  State  for  the  purposes  of 
government  as  freely  as  they  are  availed  of  by  the 
criminal  and  lawless  elements  of  society.  These 
have  rendered  obsolete  many  of  the  legal  institu- 
tions which  were  inaugurated  before  such  facilities 
of  intercommunication  and  rapid  transit  were  known. 
The  constable  and  the  posse  comitatus  are  among 


Police  Prevention  319 


the  most  notable  of  them.  Consolidation  of  con- 
flicting interests,  concentration  of  control,  and  sim- 
plicity of  organization  are  now  as  essential  to  good 
government  as  to  successful  business  operations. 

A  State  police  force  should  be  organized  in 
squads,  platoons,  companies,  battalions,  regiments, 
brigades,  and  if  necessary,  a  division  ;  with  non- 
commissioned and  commissioned  officers  corre- 
sponding in  rank  and  pay  to  those  of  similar 
commands  in  the  United  States  Army.  The 
policeman  should  be  selected  after  thorough  ex- 
amination as  to  physical  and  moral  qualifications 
and  intelligence  ;  according  to  rules  prescribed  by 
law  ;  appointed  for  life  during  good  behavior ; 
retired  on  a  pension,  as  from  the  army,  at  sixty- 
five  years  of  age  ;  and  made  secure  from  removal 
except  after  trial  and  condemnation  by  a  court. 
Appointments  should  be  made  from  every  county 
and  civil  subdivision  according  to  population.  Sub- 
divisions of  the  force  ought  to  be  assigned  to  the 
several  communities,  according  to  their  needs,  and 
subjected  to  the  orders  of  mayors  and  the  civil 
authorities,  through  their  intermediate  commanders 
acting  as  chiefs  of  police.  Promotions  of  officers 
should  be  made  by  the  governor,  after  prescribed 
examinations,  upon  the  recommendation  of  inter- 
mediate commanders.  The  organization  and  disci- 
pline must  be  on  the  military  plan.  The  whole 
force  might  be  massed  in  camp  by  brigade  or 
regiments  once  a  year  for  a  week  or  ten  days,  for 
drill  and  exercise.  The  rural  policeman  should  be 


320  The  Science  of  Penology 

mounted,  and  be  provided  with  suitable  telephone 
connections  at  his  station.  He  would  thus  be  able 
to  guard  a  considerable  district  and  abate  the  pest 
of  summer  tramps.  When  concentrated  they  should 
be  exercised  as  cavalry  ;  their  officers  and  uni- 
forms ought  to  be  assimilated  to  the  cavalry  arm 
of  the  military  service.  In  large  cities  where 
several  battalions  are  required,  one  or  more  of 
them  might  be  armed  with  rifles,  and  be  drilled  in 
their  use,  to  prepare  them  for  employment  in  the 
dispersion  of  mobs,  and  the  suppression  of  riots. 

Such  a  police  force  would  be  a  much  more  nat- 
ural and  economical  means  of  preserving  order  dur- 
ing labor  strikes  than  the  State  military  can  be. 
Its  use  for  such  purposes  would  require  no  extraor- 
dinary measures  nor  arouse  special  resentment 
among  strikers.  On  the  contrary,  it  would  so  im- 
press the  community  with  the  ability  of  the  civil 
authorities  to  enforce  obedience  to  law  instantly, 
without  the  aid  of  the  military,  that  attempts  to 
override  law  and  consolidated  authority  would  soon 
cease.  The  inordinate  expense  attending  a  sudden 
mobilization  of  an  unnecessarily  large  body  of  the 
State  troops  for  such  purposes,  as  is  usually  done, 
would  be  saved  to  the  taxpayers  ;  and  incidentally 
an  exceedingly  important  advantage  conferred  upon 
the  military  organization  by  the  complete  oblitera- 
tion of  the  chief  cause  of  the  very  unreasonable  but 
still  detrimental  hostility  which  the  labor  unions 
evince  toward  the  National  Guard.  The  members 
of  these  unions,  on  the  contrary,  ought  from  patriotic 


Police  Prevention  321 


motives,  and  on  account  of  their  numbers,  to 
constitute  the  main  strength  of  the  military  arm  of 
the  State,  and  to  take  great  pride  and  pleasure  in 
it. 

The  State  police  would  moreover  open  up  to 
men  of  military  tastes  and  special  ability,  a  new 
and  agreeable  profession  for  life,  possessing  a  suffi- 
cient stimulus  to  ambitious  effort  for  promotion. 
This  body  would  be  kept  in  continual  semi-military 
training,  and  under  full  military  discipline,  which  is 
the  main  element  of  soldierly  efficiency,  thus  main- 
taining a  very  valuable  resource  for  the  supply  of 
officers  when  large  bodies  of  troops  might  be  re- 
quired suddenly  in  national  emergencies.  The 
Seventh  Regiment  of  New  York  furnished  over 
eight  hundred  officers  to  the  northern  armies  during 
the  Civil  War.  A  well  drilled  police  in  all  our 
States  would  in  a  similar  manner  add  a  great  rein- 
forcement to  our  national  power,  in  the  occurrence 
of  war. 

After  achieving  the  confinement  of  all  the  iden- 
tified criminal  class,  the  social  utility  of  a  State 
police  during  times  of  peace  would  chiefly  consist, 
however,  in  its  disposition  and  ability  to  watch  and 
control  the  children  and  youth  of  cities  when  they 
are  on  the  streets  and  in  public  places.  Children 
as  a  general  rule  do  not  fall  into  vicious  or  criminal 
practices  at  home  under  the  parental  oversight,  or 
while  visiting  good  companions  in  their  homes.  It 
is  on  the  street  and  in  places  where  restraints  are 
removed  and  it  is  thought  no  acquaintance  will 


322  The  Science  of  Penology 


observe  or  report,  which  are  the  resort  of  those 
who  would  not  be  received  into  good  homes, — the 
depraved,  the  vicious,  and  the  criminal, — where  the 
tempter  plies  his  arts,  that  evil  associations  are 
formed,  the  barriers  of  honesty  and  virtue  under- 
mined by  insensible  degrees  and  finally  broken 
down.  These  are  the  fields  of  operation  of  the  cor- 
ruptors  of  youth,  which  afford  opportunity  for  the 
first  secret  steps  in  vice  and  crime  ;  where  "  Oft  the 
sight  of  means  to  do  ill  deeds  make  ill  deeds  done  "  1 ; 
where  the  juvenile  offender  is  found  ;  where 
children  are  degraded  into  drunkards,  prostitutes, 
and  criminals ;  where  most  of  the  recruits  for  the 
criminal  class  are  seduced  and  enlisted.  If  the 
State  will  supply  the  parental  supervision  which  is 
lacking  in  the  places  under  its  sole  care,  as  it  should, 
and  by  such  a  completion  of  its  jurisdiction  could 
do,  it  will  apply  a  potent  social  preventive  against 
the  dissemination  of  criminal  disease  at  one  of  its 
main  sources.  A  word  of  caution  or  advice,  a  recog- 
nition or  warning  from  a  reputable  and  respected 
representative  of  government,  fitly  spoken  at  a 
critical  period  in  child  life  would  often  be  the  most 
effective  deterrent  in  the  range  of  possibilities.  It 
is  vastly  more  important  in  this  department  of 
Penology  than  in  any  other  that  the  State  should 
avert  and  not  await  the  overt  act.  It  is  far  easier 
and  cheaper  to  check  the  first  attack  of  criminality 
than  to  correct  criminal  habit,  or  cure  the  well 
developed  disease. 

1  Shakespeare,  King  John,  act  iv.,  scene  2. 


Police  Prevention  323 


The  Constitution  of  a  State  police,  devoid  of  par- 
tisanship and  political  control  or  influence,  would 
speedily  insure  such  a  reliable  and  efficient  person- 
nel as  not  only  to  compel  a  general  obedience  to 
law,  but  be  competent  to  discharge  the  supreme 
parental  functions  of  government  in  full  supplement 
of  natural  failure.  Its  duties  would  include  the 
rescue  of  abandoned,  abused,  defective,  delinquent, 
and  truant  children  ;  assistance  in  the  execution  of 
school  laws  ;  the  surveillance  of  probationers  ;  en- 
forcing the  prohibition  of  child  labor  ;  sanitary  reg- 
ulations ;  the  discovery  and  relief  of  the  uncared-for 
sick  or  destitute,  and  the  general  promotion  of  social 
welfare.  It  would  bring  the  State  into  direct  per- 
sonal contact  and  relation  with  every  individual  of 
the  population. 

A  State  police  force  is  the  first  general  preventive 
prescription  of  scientific  Penology.  The  principal 
efficacy  of  this  law  will  appear  in  the  reduction  of 
the  number  of  criminals  produced  by  bad  environ- 
ment. Although  there  should  be  no  doubt  as  to 
the  power  of  the  legislature  to  assume  the  organiza- 
tion and  control  of  all  the  police  within  its  jurisdic- 
tion under  its  constitutional  obligation  to  protect 
and  promote  public  welfare,  there  has  been  much 
opposition  to  this  proposition.  The  question  has 
been  repeatedly  adjudicated  in  State  and  United 
States  courts  and  the  principle  affirmed.1 

1  The  following  citations  are  quoted  from  Professor  William  H.  Allen,  U. 
of  P.,  Annals  of  American  Academy  of  Political  and  Social  Science,  Jan- 
uary, 1901,  p.  101. 

I.   "  A  Municipal  Corporation  ...  is  but  a  department  of  the  State." — 


324  The  Science  of  Penology 

To  prevent  and  restrict  the  increase  of  the  other 
main  subdivision  of  the  criminal  class,  the  product 
of  heredity,  our  science  has  elucidated,  even  more 
positively,  a  second  general  prescription  :  That  the 
marriage  or  cohabitation  of  idiots,  weak-minded,  in- 
sane, epileptics,  criminals,  inebriates,  the  scrofulous, 
tuberculous,  leprous,  and  the  venereal  diseased,  must 
be  absolutely  prohibited.  The  importance  of  this 
prohibition  is  not  limited  to  Penology,  but  extends 
through  the  whole  sphere  of  sociology  ;  for  the  pro- 
geny of  all  these  diseased  individuals  inherit  not 
only  criminality,  but  many  other  defects  and  dis- 
eases dangerous  and  burdensome  to  society.  Its  in- 
corporation into  the  legal  code  would  therefore  not 
only  shut  off  the  great  supply  of  hereditary  or  instinc- 
tive criminals,  but  very  sensibly  reduce  the  social 
burden  of  disease  and  pauperism.  The  opposition  of 
legislators,  sometimes  possibly  from  personal  rea- 
sons, as  well  as  a  natural  reluctance  to  interfere 
with  misconceived  ideas  concerning  personal  liberty 
and  rights,  have,  notwithstanding  its  supreme  social 
value,  so  far  prevented  its  legislative  enactment. 

The  constitutional  power  of  the  State  to  regulate 
marriage  by  law  ;  to  prohibit  the  marriage  of  the 

Barnes  vs.  District  of  Columbia,  91  U.  S.,  544  ;  Mt.  Pleasant  vs.  Beckwith, 
loo  U.  S.,  524  ;  Williams  TS.  Eggleston,  170  U.  S.,  310;  Metropolitan  R. 
R.  Co.  vs.  District  of  Columbia,  132  U.  S.,  8. 

2.  "  The  police  perform  State  functions  and  are  State  agencies  and  instru- 
mentalities."— Burch  vs.  Hardwick,  30  Grattan  (Va.),  34  ;  Chicago  vs. 
Wright,  69  Illinois,  326  ;  Cobb  vs.  City  of  Portland,  35  Maine,  383  ; 
Kelly,  Administrator,  vs.  Cook,  Supreme  Court  Rhode  Island,  October  27, 
1898;  General  Laws,  Rhode  Island,  chap,  cii.,  section  17  ;  Beer  Company 
vs.  Massachusetts,  97  U.  S.,  25-33." 


Marriage  of  the  Unfit  325 


insane,  and  of  minors  without  the  consent  of  guar- 
dians ;  to  annul  marriage  for  crime,  and  such  other 
reasons  as  it  might  specify  ;  to  compel  all  proposing 
marriage  to  first  obtain  the  consent  and  license  of 
the  State  ;  to  enforce  the  registration  of  marriages, 
births,  and  deaths,  is  established  and  recognized  as 
a  proper  function  of  government.  Its  power  and 
duty  to  legislate  for  the  promotion  of  the  public 
welfare  in  every  direction  according  to  its  wisdom, 
whatever  restrictions  are  thereby  imposed  upon 
individual  freedom  of  action,  is  generally  acknow- 
ledged and  judicially  affirmed.  Its  supreme  au- 
thority over  the  life,  liberty,  property,  and  persons 
of  all  its  citizens,  and  its  power  to  regulate  their 
actions  so  as  to  insure  the  general  safety,  health, 
and  prosperity,  is  equally  well  established.  There 
can  be  no  constitutional  or  valid  objection  to  what- 
ever regulation  of  marriage  the  public  welfare  re- 
quires. Neither  is  there  any  rational  excuse  for 
governmental  neglect  to  guard  this  supreme  func- 
tion of  the  citizen — the  most  important  act  in  life, 
both  to  the  individual  and  the  State  —  with  the 
highest  wisdom  and  care.  The  happiness  and  wel- 
fare of  every  citizen,  the  public  prosperity,  the 
strength,  nay  even  the  very  perpetuity  of  the  State, 
depend  more  upon  safeguarding  the  marriage  re- 
lation than  upon  any  other  single  act  of  govern- 
ment. It  is  surprising  to  the  intelligent  mind  that 
the  social  organization  has  left  this  unique  and 
fundamental  social  proceeding  so  frightfully  unreg- 
ulated and  dangerous.  There  is  no  legislation  so 


326  The  Science  of  Penology 

urgently  required  as  the  enactment  of  this  law  of 
Penology. 

The  law  of  heredity  that  "  like  begets  like,"  the 
fruit  is  true  to  the  tree,  that  similar  causes  produce 
similar  results,  however  it  is  formulated,  is  universal 
and  invariable  in  all  nature ;  organic  and  inorganic, 
vegetable  and  animal.  Tree  and  flower,  fish,  flesh, 
and  fowl  retain  the  integrity  of  their  species  in 
endless  generation.  Mankind  not  only  always  re- 
produces mankind,  but  preserves  its  distinctive 
classification  into  white,  black,  red,  and  yellow 
races,  as  well  as  its  national,  tribal,  and  family  char- 
acteristics and  peculiarities.  The  family  of  Israel 
maintains  its  identity  in  every  clime  and  among 
every  people  under  the  sun.  Each  human  family 
resemblance  persists  from  generation  to  generation 
so  long  as  it  survives,  sufficient  for  its  identification. 
Science,  history,  and  personal  observation  constitute 
absolute  knowledge  that  every  child  will  be  moulded 
by  Nature  on  the  pattern  of  its  parents.  The 
medical  profession  and  penologists  have  published 
abundant  evidence  that  certain  parental  diseases  or 
defects,  besides  actual  criminality,  induce  moral 
depravity  in  the  offspring.1  A  recent  comparison 
of  the  history  of  the  Jukes  family  with  that  of 
Jonathan  Edwards2  affords  this  impressive  illus- 
trative contrast  between  the  heritage  of  good  and 
bad  parentage,  during  substantially  the  same  1 75 
years  of  the  same  American  environment. 

1  See  Dr.  McKim,  Heredity  and  Human  Progress  ;  Dr.  Strahan,  Marriage. 
9  Jukes— Edwards,  A.  E.  Winship,  Litt.  D. 


Marriage  of  the  Unfit  327 


Jonathan  Edwards,  born  East  Windsor,  Conn., 
in  i 703  : 

1394  of  his  descendants  were  identified  in  1900; 
of  whom  295  were  college  graduates  ; 

13  presidents  of  our  greatest  colleges  ; 

65  professors  in  colleges,  besides  many  prin- 
cipals of  other  important  educational  institu- 
tions ; 

60  physicians,  many  of  whom  were  eminent ; 

100  and  more  clergymen,  missionaries,  or  theo- 
logical professors  ; 

75  were  officers  in  the  army  and  navy ; 

60  prominent  authors  and  writers,  by  whom  135 
books  of  merit  were  written  and  published  and  18 
important  periodicals  edited  ; 

33  American  States  and  several  foreign  coun- 
tries and  92  American  cities  and  many  foreign 
cities  have  profited  by  the  beneficent  influence  of 
their  eminent  activity  ; 

100  and  more  were  lawyers,  of  whom  i  was  our 
most  eminent  professor  of  law  ; 

30  were  judges  ; 

80  had  held  public  office,  of  whom  i  was  vice- 
president  of  the  United  States  ; 

3  were  United  States  senators  ; 

Several  were  governors,  members  of  Congress, 
framers  of  State  constitutions,  mayors  of  cities,  and 
ministers  to  foreign  courts  ; 

i  was  president  of  the  Pacific  Mail  Steamship 
Company  ; 

15  railroads,  many  banks,   insurance  companies, 


328  The  Science  of  Penology 

and  large  industrial  enterprises  have  been  indebted 
to  their  management ; 

Almost  if  not  every  department  of  social  pro- 
gress and  of  the  public  weal  has  felt  the  impulse  of 
this  healthy  and  long-lived  family.  Penology  and 
prison  management  have  occupied  their  attention 
and  been  improved  by  its  members.  It  is  not 
known  that  any  one  of  them  was  ever  convicted  of 
crime. 

"  Max,"  the  progenitor  of  "  the  Jukes,"  was  born 
in  1720.  He  was  a  drunkard  who  would  not 
work ;  about  whom  little  else  is  known. 

Of  his  descendants  1 200  were  identified  as  hav- 
ing been  occupants  of  penal  and  charitable  institu- 
tions, previous  to  1874;  none  of  whom  were  ever 
elected  to  office,  served  in  the  army  or  navy,  or 
contributed  anything  to  the  public  welfare ;  but  on 
the  contrary  they  cost  society  over  $1000  each  ;  or 
a  total  of  $1,250,000  ; 

310  were  in  poorhouses,  2300  years  in  all ; 

300,  or  over  one  in  four,  died  in  childhood ; 

440  were  viciously  diseased  ; 

400  physically  wrecked  early  by  their  own  wick- 
edness ; 

50  were  notorious  prostitutes ; 

7  were  murderers  ; 

60  habitual  thieves,  who  spent  an  average  of 
1 2  years  each  in  prison  ; 

130    were    convicted    more    or    less    often    of 


crimes.1 


1  The  Jukes.    Dugdale,  pp.  68-70. 


Marriage  of  the  Unfit  329 


The  Jukes  family  never  mingled  any  good 
blood  with  its  own.  The  Edwards  family  has  in- 
stinctively protected  its  blood  from  degeneration 
by  careful  and  prudent  marriages.  The  Jukes 
family  is  fortunately  becoming  extinct ;  although 
"  the  mills  of  the  gods  grind  slow."  The  Ed- 
wards family  bless  the  world  with  numerous  child- 
ren. If  the  record  of  the  female  side  of  the 
house  could  be  collected  the  contrast  would  doubt- 
less be  doubled.  It  is  impossible  to  compute,  al- 
most so  to  overestimate,  the  value  of  such  citizens 
to  the  State. 

These  two  columns  of  statistics  are  actual  facts  ; 
which  by  themselves,  unsupported  by  the  mass  of 
other  existing  evidence,  give  sufficient  warrant  for 
legislative  regulation  of  marriage.  The  processes 
of  these  two  families  run  incessant  through  the 
whole  social  fabric.  In  America,  the  absence  of 
caste  and  class  exclusiveness,  encouraging  freedom 
of  social  intercourse,  fairly  invites  the  subtle  microbe 
of  degeneracy  to  infect  all  ranks  and  conditions, 
and  render  legislation  especially  necessary.  No 
family  can  be  safe  while  the  currents  of  intermar- 
riage spread  without  let  or  hindrance  over  the 
whole  people.  The  ferment  of  immorality  and 
disease  will  naturally  burrow  upward  and  diffuse 
itself  eccentrically  until  all  are  contaminated,  and 
the  nation  becomes  enfeebled  and  degenerate. 
Restrictive  legislation,  allowing  the  marriage  of 
sound  and  healthy  persons  only,  together  with  the 
legal  condemnation  of  prostitution  as  criminal, 


33°  The  Science  of  Penology 


would  promote  virtue  and  continence  in  youth, 
when  illicit  intercourse  almost  always  begins  and 
vicious  diseases  are  mostly  acquired,  but  when,  also, 
the  hope  of  a  happy,  virtuous  marriage  is  the  con- 
trolling motive  of  life  among  all  the  respectable 
and  intelligent.  Thus  the  social  evil  would  be 
diminished  by  such  a  popular  pronouncement.  It 
is  certainly  growing  under  present  conditions. 
Physicians  say,  also,  that  venereal  diseases  are  be- 
coming frightfully  common  among  boys  at  school. 
The  legislation  required  need  not  be  either  com- 
plicated or  difficult  of  execution.  There  should  be 
an  absolute  prohibition  of  the  marriage  or  cohabit- 
ation of  the  defectives  and  diseased  specified,  un- 
der penalty  of  castration  or  spaying  ;  and  of  females 
under  twenty  and  of  males  under  twenty-five  ;  the 
law  should  require  a  license  to  be  procured,  and 
that  a  sworn  certificate  from  the  family  or  some 
reputable  physician  shall  accompany  every  applica- 
tion for  a  marriage  license,  specifying  that  neither 
of  the  parties  to  the  proposed  union  nor  their 
parents  belong  to  the  prohibited  classes,  and  that 
both,  if  of  child-bearing  age,  are  sound,  healthy, 
and  fit  to  produce  healthy  children.  The  giving  of 
a  false  certificate  should  cancel  a  physician's  right 
to  practise  his  profession.1  It  is  well  known  that 
immature  parents  under  the  ages  stated  are  as  in- 
capable of  generating  robust  children  as  they  are 
of  nurturing  and  training,  and  generally  of  sup- 
porting them  after  they  are  born.  If  immature 

1  Prisoners  and  Paupers^  p.  286  et  seq. 


Police  Prevention  331 


marriages  are  prohibited  by  law,  a  wiser  selection 
of  mates  will  prevent  many  unhappy  marriages, 
and  so  greatly  reduce  the  growing  evils  of  divorce, 
which  are  assuming  alarming  proportions  in  society. 
An  intelligent,  reliable,  and  efficient  State  police, 
managed  from  the  seat  of  government,  and  ex- 
tended over  the  entire  territory  of  the  State,  and 
a  wise  legislative  regulation  of  the  marriage  rela- 
tion, are  the  two  great  and  imperative  prescriptions 
for  the  prevention  of  crime.  Until  they  have  been 
administered  and  have  operated,  the  social  burden 
and  contest  will  continue  unabated. 


CHAPTER   XVII. 

PRESUMPTIVE     CRIMINALS  :     THE     MINOR     WARDS     OF 
THE  STATE DEFECTIVE,  DELINQUENT,  NEG- 
LECTED,   AND    ABANDONED    CHILDREN. 

Necessity  of  State  Care  over  all  Children  —  Presumptive  Criminals  Source 
of  Three  Fourths  of  the  Criminal  Class  —  Training  of  Children  Easier 
than  Reformation  of  Criminals — The  State  alone  Competent  to  Treat 
this  Class — State  Care  not  Necessarily  Institutional — Modern  Family 
Cottage  Institutions — Authority  of  the  State  Superior  to  that  of  the 
Parent — The  Subdivision  of  Minor  Wards  of  the  State  for  Treatment — 
Legal  Prohibitions  Needed  —  Juvenile  Courts  —  State  Boards  of  Chil- 
dren's Guardians  —  Their  Duties  and  Powers — The  Five  Classes  of 
State  Juvenile  Institutions — Truant  Schools — Industrial  Schools — State 
Children's  Aid  House — State  Orphanages — Children's  Hospitals — Five 
Kinds  of  Asylums  Needed— Evils  of  State  Subsidies  to  Private  Insti- 
tutions—  Illustrated  by  Experiences  in  New  York — Census  of  Children 
under  Charitable  Care — Results  of  Private  Charity  in  Child  Saving. 

WE  have  explained  in  the  preceding  chapters 
the  principles  of  Penology  concerning  social 
protection  from  the  developed  criminal  class. 
When  the  State  has  organized  its  action  in  accord- 
ance with  these  principles,  and  executes  its  laws 
efficiently,  crime  will  be  restrained,  criminality  re- 
pressed, the  criminal  class  continually  disposed  of 
as  it  exposes  itself,  and  its  numbers  gradually  re- 
duced by  preventing  its  reproduction.  The  pro- 
cess, however,  will  be  interminable  under  existing 
social  conditions  if  action  is  confined  to  caring  for 

332 


Presumptive  Criminals  333 


the  ripened  fruit  of  criminality,  and  if  the  axe  is  not 
laid  upon  the  root  of  the  tree.  The  production  of 
criminals,  unfortunately,  is  not  confined  exclusively 
to  the  criminal  class,  but  is  a  constant  result  of  de- 
fective heredity,  progressive  degeneracy,  and  cor- 
rupting environments  pervading  the  whole  social 
organism.  The  supreme  effort  which  will  in- 
sure complete  triumph  must  be  centred  upon 
the  grandfathers  of  the  succeeding  generations  in 
the  tender  and  plastic  years  of  their  childhood.  The 
future  career  of  nearly  every  criminal  is  determined 
before  he  is  past  the  school  age.  Thus  the  great 
duty  of  intelligent  and  conscientious  parents  is  to 
rear  and  train  their  children  for  lives  of  honest, 
self-supporting  citizenship.  It  devolves  upon  the 
State  to  provide  the  necessary  facilities  for  such  a 
training,  to  compel  the  universal  employment  of 
them  by  negligent  parents,  and  to  supply  proper 
parental  care  when  it  is  wanting.  The  State  at- 
tempts the  discharge  of  this  duty  by  its  public- 
school  system  and  its  compulsory  education  laws ; 
an  attempt  which  will  be  more  fully  considered  in 
a  subsequent  chapter.  We  shall  confine  our  atten- 
tion here  to  the  duties  of  the  State  to  children 
who  are  without  proper  parental  care  ;  our  fifth  cate- 
gory of  the  criminal  class, — Presumptive  Criminals. 
Although  this  category  constitutes  a  very  insignifi- 
cant proportion  of  the  number  of  children  in  the 
population  of  this  country  it  produces  doubtless 
75  per  cent,  of  its  criminals.1  To  nip  in  the  bud 

1  The  Criminal,  Dr.  Drahms,  p.  286. 


334  The  Science  of  Penology 

three  fourths  of  the  perennial  crop  of  criminality 
would  therefore  save  the  country  three  fourths  of 
all  it  now  suffers  from  the  criminal  class  in  outrage 
and  apprehension,  besides  the  enormous  annual 
pecuniary  saving  of  $450,000,000,  if  Dr.  Eugene 
Smith's  conservative  estimate  of  the  cost  of  crime 
to  the  country  is  correct.1  This  section  of  Penol- 
ogy is  therefore  by  far  the  most  important. 

It  would  naturally  seem,  moreover,  to  be  as 
much  the  easiest  to  accomplish  as  it  is  the  most 
important.  All  that  is  necessary  to  secure  this 
beneficent  result  is  an  intelligent  and  systematic 
provision  by  society  of  good  parental  care  and 
training  for  this  comparatively  small  number  of  its 
children.  Over  them  at  least  the  State  must  of 
necessity  assume  parental  authority.  The  State 
must  recognize  its  responsibilities,  and  discharge 
the  functions  which  can  find  nowhere  else  the 
requisite  authority.  Experience  has  abundantly 
demonstrated  the  inadequacy  of  social  dependence 
upon  private  charity  fully  to  protect  the  commun- 
ity in  this  direction,  notwithstanding  the  great 
and  admirable  philanthropic  efforts  continually 
made.  These  efforts  are  sporadic,  unequally  dis- 
tributed, without  any  general  plan  or  system  ;  bene- 
ficial, but  incapable  of  the  necessary  completeness. 
The  State  alone  has  the  ability  to  comprehend  the 
whole  mass  in  its  care  everywhere,  to  raise  the 
money  needed  by  taxation,  to  devise  and  establish 

1  "  The  Cost  of  Crime,"  Eugene  Smith,  Report  of  National  Prison  Asso- 
ciation, 1900. 


Presumptive  Criminals  335 


a  progressive  system  of  training,  and  a  final  con- 
finement in  suitable  asylums  for  those  who  cannot 
be  fitted  for  social  life.  The  State  can  command 
the  highest  intelligence,  the  ripest  experience,  and 
all  the  resources  of  society  in  the  performance  of 
this  duty,  and  accomplish  all  that  is  possible  with 
the  least  expenditure  of  energy  and  money.  The 
State  must,  therefore,  take  the  entire  charge  of 
these  children. 

The  work  is  easy  in  comparison  with  the  reforma- 
tion of  criminals,  because  these  children  may  be  re- 
moved from  a  corrupting  environment  before  it  has 
made  any  durable  impression  upon  their  character. 
They  can  be  nurtured  to  health  of  body,  mind,  and 
soul,  instead  of  subjected  to  an  arrest  or  perversion 
of  development  ;  their  whole  childhood  may  be 
turned  from  wrong  into  right  directions,  and  its 
training  be  for  honest,  instead  of  criminal  man- 
hood. The  primary  inculcation  of  good  habits  of 
life  is  far  easier  than  the  breaking  up  of  acquired 
bad  ones  and  the  late  substitution  of  good  ones  in 
their  place. 

The  infant  is  human  clay  in  the  hands  of  the 
parent,  which  is  moulded,  according  to  the  will  and 
skill  of  the  manipulator,  into  a  manhood  of  honor  or 
dishonor.  There  are  but  few  persons  born  with  an 
organism  so  far  divergent  from  the  normal  constitu- 
tion that  it  cannot  be  trained  up  to  at  least  a  safe 
conformity  with  the  requirements  of  social  existence. 
The  disease  of  criminality,  like  every  other  disease, 
is  most  successfully  treated  in  its  incipiency  ;  or,  if 


336  The  Science  of  Penology 

it  is  hereditary,  when  the  remedial  treatment  is  be- 
gun in  infancy.  Most  children  can  be  brought  up 
in  harmony  with  their  generation  by  proper  care, 
instead  of  in  hostility  to  it  if  they  grow  up  without 
this  care.  The  cost  of  their  proper  training  by  the 
State,  where  it  is  not  supplied  by  the  natural  parent, 
will  be  far  less  to  the  public  than  the  cost  of  per- 
mitting them  to  grow  up  uncontrolled  into  crimin- 
als; probably  less  than  one  third  of  what  the  adult 
criminal  costs. 

This  assumption  of  parental  functions  by  the 
State,  however,  where  they  are  lacking,  does  not 
necessitate  the  indiscriminate  collection  of  all  the 
uncared-for  in  institutions,  which  experience  has 
proved  to  be  as  unfruitful  of  the  best  results  as  it  is 
unnatural.  Institutions  are  required  for  some 
classes  of  defectives,  for  the  temporary  care  of 
infants,  and  for  the  primary  training  of  children 
who  are  found  to  be  unfit  for  introduction  into 
family  life.  It  is,  however,  a  very  difficult  matter 
to  give  every  child  in  a  large  institution  that 
personal  attention  and  love,  that  "milk  of  human 
kindness,"  which  is  the  natural  food  and  nurture 
of  the  child  in  the  family.  Mr.  Brockway  and 
others  testify  that  many  of  the  convicts  who  have 
come  under  their  care  have  been  graduated  from 
various  public  institutions.  The  legitimate  duty 
of  the  State  is  to  gather  up  all  those  who  are 
without  proper  parental  care,  and  to  supply 
the  best  it  can.  The  number  of  families  who 
want  children,  and  will  properly  train  them,  is 


Presumptive  Criminals  337 


undoubtedly  sufficient  to  furnish  most  of  the  parental 
care  which  is  lacking,  if  the  State  will  undertake  to 
equalize  and  adjust  the  supply  and  demand.  The 
existing  voluntary  children's  aid  societies  always 
find  a  constant  demand  for  nice,  healthy  children, 
equal  to  their  supply.  But  their  experience  has 
suggested  the  necessity  of  the  power  of  the  State 
in  some  cases  to  get  the  children  ;  the  support  of 
the  State  during  their  preliminary  renovation  and 
distribution  ;  and,  more  than  all,  in  their  subsequent 
supervision  and  maintenance,  after  they  have  been 
"  placed  out "  in  families.  This  is  another  duty 
which  could  be  well  discharged  by  the  probation 
officers  in  the  various  judicial  districts  ;  who  should 
be  authorized  to  select  voluntary  aids  from  the 
charitable  women  in  the  district,  but  who  should  be 
the  official  channel  of  connection  between  the  child 
and  the  State. 

The  modern  child-saving  institution,  built  on  the 
small,  separate-cottage  plan,  accommodating  a 
family  of  not  more  than  fifty,  with  its  educated  and 
benevolent  father  and  mother,  and  with  its  goodly 
measure  of  family  life,  is  much  superior  to  the  large 
heterogeneous  institutions  which  were  formerly 
universal,  and  which  have  produced  the  unfavor- 
able results  that  have  been  observed.  A  child 
reared  in  such  an  institution  stands  a  much  better 
chance  of  reaching  a  healthy,  all-around  develop- 
ment than  if  placed  in  a  poor,  hard-working,  and 
unintelligent  family,  whose  acceptance  of  the  charge 
is  inspired  by  a  selfish  desire  for  the  service  which 


338  The  Science  of  Penology 


can  be  cheaply  got  rather  than  the  service  which 
can  be  rendered,  and  which  makes  the  child  of  the 
State  a  drudge  but  little  better  than  a  slave.  The 
modern  cottage  institution,  with  its  scientific  appli- 
ances for  general  physical  and  manual  training  and 
mental  and  spiritual  nurture,  offers  a  far  prefer- 
able home  for  the  homeless  than  that  which  many 
private  families  can  or  will  give.  Discrimination 
must  be  exercised,  therefore,  in  placing  children  in 
private  families,  and  careful  vigilance  in  the  visita- 
tion of  them  afterwards. 

The  minor  wards  of  the  State  are  divided, 
according  to  the  different  conditions  which  consti- 
tute them  such  wards,  into  four  classes  :  Neglected, 
Abandoned,  Defective,  and  Delinquent  Children. 
There  is  no  question  concerning  the  duty  or  power 
of  the  State  to  provide  for  the  last  three  classes,  as 
no  one  else  is  obliged  to  do  this ;  but  the  natural, 
and  presumptively  inalienable,  rights  of  parents 
over  their  own  offspring  raise  often  a  very  serious 
question  when  the  State  attempts  to  interfere  with 
the  control  of  children  against  the  will  of  the  parent, 
however  much  they  may  be  neglected  or  even 
abused.  The  difficulty,  however,  arises  more  from 
the  lack  of  official  agencies  than  of  legal  power  in 
the  State.  Ever  since  society  has  been  organized 
into  states,  the  Sovereign  has  been  recognized  by 
law  as  the  supreme  protector  of  the  persons  and  es- 
tates of  all  the  infants  within  its  jurisdiction  ;  their 
personal  and  property  rights  as  distinct  and  separate 
from  those  of  the  parent.  The  law  imposes  upon  the 


Presumptive  Criminals  339 


parent  only  proper  guardianship  and  care,  but  this 
it  must  compel  the  parent  to  exercise  whenever  it 
is  possible.  When  parents  fail  to  provide  this,  the 
State  has  always  exercised  its  supreme  right,  when 
it  has  been  invoked,  to  remove  children  from  their 
custody  ;  to  take  them  from  one  and  give  them  to 
the  other ;  or  to  place  them  where  they  will  be 
properly  reared,  without  any  regard  to  so-called 
parental  rights.  Taking  children  from  dissolute 
families  frequently  leads  to  the  reformation  of  the 
parents,  and  so  accomplishes  a  double  social  bene- 
fit. But  this  power  of  the  State  cannot  be  exer- 
cised without  the  formalities  of  legal  procedure. 
There  must  be  a  prosecutor,  a  judicial  trial, 
expenses  incurred,  and  a  better  guardian  found. 
The  laws  do  not  generally  provide  an  investigating 
and  prosecuting  agent  charged  with  this  duty,  or  the 
necessary  means  for  its  execution  in  these  cases. 
It  is  left  to  private  charity  to  initiate  the  move- 
ment, which  is  often  an  unwelcome,  distasteful,  and 
unreliable  dependence. 

The  imposition  by  law  of  the  duty  of  caring  for 
all  apparently  neglected  children  upon  a  special 
officer,  or  board  of  officers,  would  solve  this  diffi- 
culty also.  Whenever  it  is  proved  to  the  satisfac- 
tion of  the  judge  that  parents  are  guilty  of  gross 
ill-treatment  of  their  children,  or  that  their  habits 
are  intemperate  or  criminal,  or  that  their  family 
life  tends  to  corrupt  and  contaminate  their  children, 
or  that  they  neglect  to  properly  provide  for  their 
comfort  or  training,  the  State  must  depose  them 


340  The  Science  of  Penology 

from  their  guardianship,  remove  the  children  to 
wholesome  care,  and  provide  for  them  the  training 
necessary  for  good  citizenship.  The  cost  of  this 
provision,  however,  must  be  assessed  to  the  fullest 
extent  possible  upon  the  natural  parents  in  order  to 
prevent  those  who  desire  to  be  relieved  of  the  cost 
of  maintaining  their  children  from  taking  undue 
advantage  of  the  State.  This  is  not  only  the  just 
power,  but  also  an  absolute  obligation  of  the  State, 
which  it  cannot  afford  to  neglect.  A  power  and 
obligation  as  imperative  rests  upon  it  in  regard  to 
the  other  classes  named,  and  is  even  more  im- 
portant, because  the  State  alone  can  discharge  this 
duty  satisfactorily. 

The  four  classes  of  minor  wards  will  necessarily 
be  subdivided,  for  special  treatment  under  State 
care,  according  to  the  following  scheme  : 


a.  From    parental    incompetence   or 

poverty. 
I.  THE  NEGLECTED.  ^  b.  From  parental  depravity  or  vice. 

c.  Half-orphans. 

d.  Orphans. 


II.  THE  ABANDONED.  < 


e.  Foundlings. 

f.  Illegitimate  infants  with  mothers. 

g.  By  unknown  parents. 

(  Responsible, 
h.  By  discoverable        1 
parents. 

^  Incompetent. 


Presumptive  Criminals 


III.  THE  DEFECTIVE.  •< 


IV.  THE  DELINQUENT. 


PHYSICALLY. 


1. 


MENTALLY. 


MORALLY. 


The  blind. 
Deaf-mutes. 
Incurably    de- 
formed,crippled, 
or  diseased. 
Cur  ably       de- 
formed, crippled, 

or  diseased, 
m.  Weaklings. 

n.  Imbeciles, 
o.  Feeble-minded, 
p-  Insane, 
q.  Epileptics. 

Depraved  by  he- 
redity or  environ- 
ment. 

Criminal  by  dis- 
position. 

Vicious  by  habit. 


u.  Arrested  for  felonies.  )    T          ., 
v.  Arrested  for   misde-  [  -"uvej 

.  meanprs.  j  offenders. 

w.  Insubordinate  or  incorrigible. 
x.  Truants  and  runaways. 


In  order  to  organize  a  complete  and  effective 
system  of  State  care  for  its  minor  wards  it  will  be 
necessary  : 

First :  That  the  law  shall  positively  prohibit  the 
confinement  of  any  minor,  except  such  as  shall  be 
sentenced  to  death  or  to  life  imprisonment,  in  jails 
or  prisons  ;  and  the  retention  of  any  child  over  two 
years  of  age  for  more  than  two  months  in  an  alms- 
house,  except  (c  and  f)  "  Infants  with  good 
mothers  "  up  to  six  years  of  age,  and  such  (k)  "  in- 
curably deformed,  crippled,  and  diseased,"  and  such 


342  The  Science  of  Penology 

(m)  "weaklings,"  as  cannot  be  as  well  cared  for  in 
other  institutions  of  the  State. 

Second  :  That  Juvenile  Courts  shall  be  estab- 
lished in  all  large  cities,  for  the  trial  or  disposition 
of  all  children  of  school  age  who  may  fall  into  the 
hands  of  officers  of  the  law,  as  either  delinquent  or 
neglected.  This  is  necessary  in  order  to  insure 
immediate  and  careful  investigation  of  all  the  cir- 
cumstances and  adjudication  of  the  case,  as  well  as 
to  prevent  injury  to  the  self-respect  and  character 
of  the  child  by  bringing  it  into  the  general  criminal 
court  in  association  with  old  criminals.  Such  a 
court  will  appreciate  the  expediency  of  allowing 
many  of  those  brought  before  it  to  go  at  large  on 
probation  more  fully  than  judges  who  are  accus- 
tomed to  deal  with  hardened  criminals  according  to 
specific  penalties. 

Third  :  That  a  "  State  Board  of  Children's 
Guardians  "  shall  be  constituted  of  about  an  equal 
number  of  men  and  women  of  high  reputation  and 
large  experience  in  philanthropic  work,  who  shall 
serve  without  pay  in  order  that  the  positions  may  not 
be  sought  by  politicians,  upon  which  Board  should 
be  devolved  the  powers  and  duties  of  the  State  in 
respect  to  these  minor  wards.  The  Board  should  be 
held  responsible  for  the  proper  care  of  every  un- 
cared-for infant  in  the  State,  and  empowered  to 
make  and  enforce  such  rules  and  regulations  as  in 
its  judgment  may  be  necessary  to  insure  this. 

To  this  end  appropriations  of  the  State  funds 
should  be  made  for  its  travelling  and  office  expenses; 


Presumptive  Criminals  343 


for  the  salary  of  a  general  agent  and  such  assistants 
and  clerical  force  as  may  be  required  ;  for  legal 
expenses  ;  for  the  maintenance  of  children  tempo- 
rarily cared  for  and  their  transportation  to  the 
place  of  permanent  residence ;  for  their  board  and 
transfers ;  and  for  whatever  other  expenses  the 
board  properly  incurs  in  the  execution  of  its  duties 
under  the  laws. 

The  Board  should  be  empowered  to  appoint 
auxiliary  county  or  district  boards  of  visitors, 
with  authority  of  visitation  and  inspection  of  all 
State  wards  in  its  district,  and  to  defray  all  the  ex-, 
pense  of  such  visitations.  It  should  be  authorized 
to  require  the  appointment  of  probation  officers  in 
sufficient  numbers  to  supervise  all  uncared-for  or 
delinquent  minors  at  large  in  every  judicial  district, 
and  to  cause  the  removal  of  such  officers  as  are  in  its 
judgment  inefficient.  The  Board  should  have  power 
to  obtain  the  assistance  of  constables,  police  officers, 
and  detectives,  and  to  commit  all  neglected, 
abandoned,  and  defective  minor  wards  to  suitable 
State  institutions,  and  to  private  hospitals  at  the 
cost  of  the  State  ;  to  place  them  in  families,  either 
for  board  or  for  permanent  adoption  ;  to  summarily 
remove  from  any  place  or  family  any  that  are  not 
satisfactorily  cared  for  ;  to  compel  negligent  parents 
or  relatives,  who  are  able,  to  defray  the  expense  of 
children  in  the  care  of  the  State  ;  to  license  boarding- 
houses  for  infants  under  such  regulations  as  it  may 
adopt ;  to  inspect  and  regulate  the  management 
of  all  State  and  private  institutions  where  any  minor 


344  The  Science  of  Penology 


ward  of  the  State  may  be  ;  and  in  general  to  do  and 
perform  whatever  may  be  necessary  to  the  efficient 
discharge  of  its  duties.  It  should  be  made  obliga- 
tory upon  this  Board  to  place  all  children  in  good, 
carefully  examined  families,  as  rapidly  as  and  to  the 
fullest  extent  that  may  be  possible.  It  should  be 
authorized  to  make  contracts  with  families  for  the 
care  of  children  placed  in  its  charge  ;  and  with 
the  boards  or  officials  of  other  States  for  those  who 
cannot  be  provided  with  good  homes  in  their  own 
State.  Families  of  the  same  religious  faith  as  that 
of  the  parents,  where  it  is  known,  should  be  pre- 
ferred as  far  as  possible.  It  should  be  the  aim  of  the 
Board  to  keep  the  minor  population  of  public  in- 
stitutions at  the  minimum  of  numbers,  and  to  place 
its  wards,  as  far  as  possible,  in  early,  helpless  in- 
fancy, when  they  are  most  likely  to  win  the  love  of 
their  foster-parents. 

States  will  require,  nevertheless,  five  classes  of  in- 
stitutions exclusively  devoted  to  the  care  of  its 
minor  wards ;  in  number  and  size  proportioned  to 
their  population. 

First:  The  Children 's  Aid  Houses ;  where  all 
minor  wards  can  be  primarily  received,  cared  for 
until  permanently  located,  and  trained  into  reason- 
able fitness  for  membership  in  good  families. 

Second:  The  State  Orphanage;  for  infants 
with  their  mothers,  erring  girls,  and  foundlings. 

Third  :  The  Truant  Schools ;  for  the  neglected, 
abandoned,  truant,  insubordinate,  and  incorrigible 
children  of  school  age. 


Presumptive  Criminals  345 


Fourth  :  Male  and  Female  Industrial  Schools  ; 
for  the  Juvenile  Offenders. 

Fifth  :  Children's  Hospitals  ;  for  the  Curably 
deformed,  crippled,  and  diseased. 

The  first,  second,  and  fifth  classes  should  be  di- 
rectly managed  by  boards  of  trustees  appointed  by 
the  Governor,  by  and  with  the  advice  of  the 
Senate,  and  constituted  of  both  men  and  women  of 
philanthropic  character  and  reputation. 

The  Truant  Schools  should  be  managed  and  sup- 
ported by  the  Public  School  Department  of  the 
State  under  similarly  appointed  boards  of  trustees, 
subject  to  the  joint  supervision  and  authority  of  the 
Board  of  Children's  Guardians  and  the  Public 
School  Department.  They  should  be  pleasantly 
situated  in  healthy  country  locations,  easy  of  access 
from  the  principal  centres  of  population  ;  built  as 
boarding-schools,  on  the  cottage  plan,  in  order  to 
secure  proper  classification  and  separation  of  the 
pupils  according  to  sex,  age,  and  character  ;  be  pro- 
vided with  shops  for  manual  training  adapted  to 
children  of  both  sexes,  in  sloyd,  clay  modelling, 
drafting,  and  carpentry ;  the  common  occupations  of 
country  life  ;  sewing,  cooking,  and  household  duties 
for  the  girls.  Sufficient  land  should  be  connected 
with  them  for  outdoor  recreations  and  gardening 
work  adapted  to  children.  They  should  be,  in  loca- 
tion and  capacity,  adequate  to  provide  comfortably 
for  all  delinquents  of  school  age  who  cannot  be 
trusted  at  large  under  probation,  except  those  ar- 
rested for  felonies  :  for  (v)  "Juvenile  Offenders" 


34°  The  Science  of  Penology 


arrested  for  misdemeanors,  the  (w)  "  Insubordinate 
and  Incorrigible,"  and  persistent  (x)  "Truants  and 
Runaways."  Pupils  should  not  be  discharged  before 
reformation  has  fitted  them  for  free  life,  nor  returned 
to  parents  who  have  not  paid  the  school  bills,  if 
able  to  do  so,  and  never  until  a  good  home  or  situ- 
ation at  work  has  been  provided,  and  then  upon 
probation  and  on  parole.  The  incorrigible  at  grad- 
uation should  be  transferred  to  an  industrial  school 
for  further  treatment. 

The  Male  and  Female  Industrial  Schools  have 
been  described  in  Chapter  XV.  To  them  the 
Morally  Defective  (r,  s,  and  t),  and  Delinquents 
arrested  for  felonies  (u),  of  School  age — who  should 
be  subject  to  the  supervision  of  the  Board  of  Chil- 
dren's Aid  Guardians — should  be  directly  com- 
mitted. 

A  State  Children's  Aid  House  should  be  estab- 
lished in  all  populous  centres ;  with  sufficient  ac- 
commodation for  the  temporary  care  of  all  classes 
of  minor  wards  who  may  be  discovered  by  the  pub- 
lic or  the  police.  They  should  receive  all  comers, 
and  cleanse,  dress,  investigate,  and  distribute  them 
according  to  the  circumstances  and  needs  of  each. 
There  should  be  a  matron  in  superintendence  with 
a  sufficient  number  of  assistants  ;  a  regular  medical 
superintendent,  responsible  for  the  examination  and 
health  of  all  the  children  and  the  sanitary  condition 
of  the  house  ;  although  it  will  not  be  neccessary  for 
him  to  be  continually  in  residence  except  in  very 
large  houses.  In  large  cities,  separate  wards  for 


Presumptive  Criminals  347 


infants  and  for  the  sick  and  injured  will  be  required, 
as  well  as  for  the  older  boys  and  the  girls.  The 
chief  duties  of  the  Board  of  trustees  will  be  to  dis- 
cover the  needs  and  the  nature  of  each  child 
brought  in,  and  to  prepare  each,  as  soon  as  possible, 
for  a  permanent  location.  Many  only  temporarily 
destitute  may  be  returned  to  proper  parents  when 
they  can  support  them.  Although  at  first  most  are 
physically  and  morally  unfit  for  decent  family  life, 
ninety  per  cent,  can  be  made  acceptable  in  a  year.1 
This  Board  will  be  the  great  philanthropic  agency 
of  the  community  concerning  children,  and  will  solve 
the  question  which  has  so  long  vexed  the  charitable, 
"  What  is  to  be  done  with  this  child  ?  " 

A  State  Orphanage  should  be  established  in 
every  State  ;  some  of  the  larger  States  will  require 
several.  They  should  be  located  in  the  country 
and  designed  for  the  care  of  all  neglected  and 
abandoned  children  below  the  school  age  of  six 
years,  with  their  indigent  mothers.  These  mothers 
can  assist  in  the  care  of  infants,  and  in  their  nurs- 
ing and  training,  while  undergoing  a  course  of 
general  training  and  discipline  themselves.  The 
mothers  should  be  judicially  committed  with  their 
children  under  an  indeterminate  sentence  ;  and  dis- 
charged only  when  fit  for  a  respectable  free  life,  and 
when  a  proper  home  has  been  secured  for  them 
by  the  Board.  All  infants  left  in  the  orphanage 
without  mothers,  or  by  mothers  or  fathers,  should 

1  Homer  Folks  in  Charities  Review,   1900,  p.  182  ;    Report  of  National 
Conference  of  Charities,  p.  181. 


348  The  Science  of  Penology 

be  held  as  wards  of  the  State,  entirely  without 
knowledge  of  their  parents  (who  should  not  be 
permitted  intercourse  with  them),  to  be  placed  for 
board  or  for  adoption  at  the  discretion  of  the  Board, 
before,  if  possible, —  certainly  as  soon  as, —  they 
arrive  at  school  age,  so  that  they  may  attend  the 
public  schools  and  have  family  home  training.  The 
orphanage  should  be  managed  by  a  matron,  and 
have  an  infirmary,  play  and  kindergarten  rooms  for 
the  older  children,  and  a  special  reformatory  de- 
partment for  erring  girls. 

The  Children  s  Hospitals  should  be  located  in  the 
suburbs  of  the  large  cities,  for  the  convenience 
of  the  patients,  and  to  secure  the  best  medical  and 
surgical  skill  on  the  staff.  They  are  vitally  im- 
portant for  the  physical  defectives  of  subdivision 
i,  of  which  there  will  be  found  a  much  larger 
percentage  than  among  children  of  good  parentage, 
well  cared  for.1  Very  many  of  this  class  may,  by 
the  skill  of  modern  surgeons  and  doctors,  be  ren- 
dered able  to  support  themselves,  who  would  other- 
wise be  doomed  to  a  life  of  misery  and  pauperism, 
of  repugnance  and  reproach  to  society.  Many  of 
the  defects  of  eyesight  and  other  senses  and  mem- 
bers can  be  remedied,  which  would  otherwise 
prove  lifelong  obstacles  to  success.  The  State 
cannot  afford  to  allow  any  child  who  can  be  cured 
by  proper  treatment  to  endure  a  life  of  dependence 

1  The  last  Annual  Report  of  the  English  Childhood  Society  states  that  of 
the  100,000  children  examined  1.6  per  cent,  were  found  defective  to  a 
marked  extent. 


Presumptive  Criminals  349 


and  suffering.  People  will  not  adopt  defective 
children,  and  they  must  be  lifelong  dependents 
upon  the  State  unless  their  defects  are  cured  in 
•childhood.  These  hospitals  should  receive  all  pa- 
tients committed  by  the  agents  of  the  State  Board, 
who  should  have  authority  to  obligate  the  State 
for  the  cost  of  their  treatment,  and  to  transfer  them 
to  such  places  as  are  suitable  when  the  hospital 
superintendent  certifies  to  the  desirability  of  their 
removal. 

In  addition  to  these  institutions,  specially  in- 
tended for  minor  wards,  each  State  should  maintain 
five  different  kinds  of  Asylums  for  special  classes  of 
defectives  of  all  ages,  with  a  children's  department 
in  each.  These  are  the  asylums  for  the  (i)  Blind  ; 
the  (j)  Deaf-Mutes ;  the  (n)  Imbeciles,  physical, 
mental,  and  moral ;  and  (o)  the  Feeble-Minded  who 
can  be  trained  to  some  degree  of  self-care  and  sup- 
port ;  (p)  the  Insane  ;  and  (q)  the  Epileptics  ;  to 
which  all  minor  wards  of  these  classes  should  be 
directly  transferred  as  soon  as  discovered.  The 
(k)  Incurably  deformed,  crippled,  and  diseased 
must  necessarily  be  committed  to  the  almshouse ; 
but  it  should  be  made  the  duty  of  the  State  Board 
to  visit  all  almshouses  at  least  four  times  each 
year  and  to  see  that  such  inmates  are  humanely 
treated.  The  Board  should  also  exercise  great 
vigilance  to  avoid  relieving  parents  unnecessarily 
from  the  care  of  defectives  whom  they  are  able 
to  support. 

It  is  an  axiom  of  sociology  as  well  as  of  Pe- 


35°  The  Science  of  Penology 


nology,  that  no  healthy  child  should  be  permitted  to 
grow  up  in  an  institution,  without  family  training. 
The  tendency  of  the  State  aid,  contract,  or  sub- 
sidy plan  of  supporting  minor  wards  in  private 
institutions  has  been  to  encourage  their  undue 
detention  in  them  in  violation  of  this  law,  to  the 
serious  damage  of  the  public.  By  improper  politi- 
cal influences,  extravagant  appropriations  have 
been  secured  for  such  institutions,  based  upon  the 
numbers  maintained,  often  more  than  enough  to 
entirely  support  the  whole  organization.  This 
precedent  has  not  only  encouraged  the  retention  of 
inmates,  the  "padding"  of  reports,  and  careless- 
ness, or  worse,  in  sifting  applications  for  admission. 
It  has  encouraged  parents,  especially  newly  arrived 
immigrants,  to  regard  these  institutions  as  public 
boarding-schools,  intended  to  relieve  them  from 
the  burden  of  supporting  their  children,  and  has 
encouraged  the  multiplication  of  institutions  with- 
out due  regard  to  the  needs  of  society.  This  plan, 
besides,  prevents  that  general  classification  and 
separation  of  the  children  which  is  essential  to 
their  proper  training.  Each  institution  is  a  law  to 
itself ;  no  general  authority  can  be  exercised  over 
them  to  separate  into  classes  and  remove  con- 
taminating children  to  other  suitable  institutions. 
It  also  inevitably  establishes  relations  between  the 
State  and  sectarian  institutions  which  are  contrary7 
to  many  State  constitutions,  and  antagonistic  to 
the  principle  of  complete  separation  between  Church 
and  State  upon  which  our  Republic  is  founded. 


Presumptive  Criminals  351 


These  evils  were  impressively  illustrated  in  the 
experience  of  the  State  of  New  York  during  the 
period  from  1875  to  1892,  while  its  subsidy  plan 
was  in  unrestricted  operation. 

"  New  institutions  were  incorporated  for  the  purpose  of 
receiving  these  allowances  of  public  funds,  and  there  grew  up 
what  can  be  described  only  as  a  fierce  rivalry  on  the  part  of 
various  institutions  to  secure  the  commitment  of  large  num- 
bers of  children  to  their  care.  The  result  was  inevitable  ; 
children's  institutions,  of  a  size  hitherto  unknown,  were  de- 
veloped, and  the  number  of  dependent  children  increased  out 
of  all  proportion  to  the  population.  From  1875  to  1892  the 
general  population  of  the  State  increased  thirty-eight  per 
cent.  ;  the  number  of  children  in  institutions,  ninety-six  per 
cent. 

"  Comparatively  few  of  the  children  were  placed  in  families, 
the  great  majority  of  them  being  returned  to  their  parents  or 
relatives  upon  reaching  a  self-supporting  age.  ...  Of  the 
children  who,  on  September  30,  1894,  had  been  supported  by 
the  city  of  New  York  more  than  five  years  in  institutions,  ninety- 
seven  per  cent,  were  in  sectarian,  and  only  three  per  cent,  in 
non-sectarian  institutions.  .  .  .  The  number  of  children 
in  institutions  had  increased  from  14,773  on  September  30, 
1875,  year  by  year,  to  33,558  in  1894."  ' 

The  experience  in  California  and  elsewhere 
under  the  subsidy  plan  has  been  similar.2  Mr. 
Edward  T.  Devine,  the  General  Secretary  of  the 
Charity  Organization  Society  of  New  York  City,  in 
a  paper  read  at  the  New  York  Conference  of  Chari- 
ties in  Albany,  November,  1900,  said  : 

"  From  the  maze  of  complications  and  difficulties  in  which  the 

1  Homer  Folks,  Charities  Review,  February,  1900,  p.  556-557. 
» Ibid. 


352  The  Science  of  Penology 


whole  question  of  the  care  of  dependent  children  is  involved  a 
few  principles  emerge  : 

"  First — Children  should  remain  with  their  parents  if  the  lat- 
ter are  of  good  character  and  have  sufficient  income  for  their 
support.  Simple  and  obvious  as  this  proposition  appears,  it 
has  been  frequently  violated  in  the  past,  and  in  the  city  of 
New  York  its  violation  has  been  so  widespread  and  continued 
as  to  create  in  the  minds  of  thousands  of  residents  in  the  city, 
and  even  in  the  minds  of  future  residents  who  are  still  beyond 
the  seas,  that  by  coming  to  New  York  and  putting  themselves 
into  relations  with  the  proper  persons  it  will  be  possible  for 
them  to  rid  themselves  of  the  expense  and  burden  of  looking 
after  their  children. 

"  Second — Parents  who  are  of  good  character  and  who  with 
a  reasonable  amount  of  private  assistance  can  support  their 
children  at  home  should,  as  a  rule,  receive  such  assistance, 
and  the  breaking  up  of  the  family  should  thus  be  averted." 

What  society  requires  is  a  complete  system  of  care 
for  all  the  minor  wards  of  the  State,  from  their 
birth  until  they  become  honest  and  independent  citi- 
zens ;  or,  if  they  cannot  be  made  such,  that  they  be 
retained  in  confinement  to  the  end  of  life.  Such  a 
system  can  be  organized  and  operated  only  by  the 
State. 

Mr.  Homer  Folks,  at  the  conclusion  of  his 
treatise  upon  "  The  Care  of  Destitute,  Neglected, 
and  Delinquent  Children,"  in  the  April  (1900) 
Charities  Review,  estimates  the  total  census  of 
children's  homes  in  the  United  States  in  1900  to  be 
from  80,000  to  85,000  ;  and,  including  those  for 
Juvenile  Offenders,  at  100,000 ;  while  there  are 
probably  now  50,000  others  in  public  or  private  in- 
stitutions— a  total  of  150,000.  It  does  not  seem 


Presumptive  Criminals  353 


probable  that  the  existing  instrumentalities,  lacking 
system  as  they  do,  have  been  able  to  reach  half  of 
those  who  should  be  cared  for,  and  it  may  be  .con- 
servatively assumed  that  there  are  at  present  in  the 
country  at  least  300,000  children  who  require  the 
attention  of  society.  If  we  were  to  spend  $500  a 
year  in  training  this  number,  it  would  only  be  a 
third  of  the  annual  saving  to  the  public  by  deterring 
them  from  criminal  lives.  The  subject  is  certainly 
worthy  the  best  thought  and  study  of  statesmen. 

Even  the  desultory  and  unsystematic  work  of 
private  chanty  has  demonstrated,  beyond  question, 
the  great  usefulness  of  child-saving  efforts.  For 
instance,  the  forty-seventh  annual  report  of  the  New 
York  Children's  Aid  Society  contains  an  interesting 
study  of  the  children  it  has  placed  in  homes  from 
1854  to  1875  : 

"  Not  including  older  children  afforded  transportation  with 
their  parents  to  points  in  the  West,  the  total  number  of  children 
placed  in  families  during  the  twenty  years  was  20,004.  Of  this 
number,  2423,  or  a  little  less  than  one  fifth,  were  under  ten 
years  of  age.  There  were  received  from  public  institutions 
2578,  from  lodging  houses  and  industrial  schools  of  the  Chil- 
dren's Aid  Society  and  from  private  institutions,  11,308,  and 
from  parents,  relatives,  and  other  sources,  6118.  The  after 
careers  of  many  of  the  children  are  not  known,  but  of  those 
who  have  been  traced,  53  are  teachers,  2  are  college  professors, 
22  are  lawyers,  12  clergymen,  23  bankers,  or  engaged  in 
banking  business,  9  physicians,  4  druggists,  15  telegraph  oper- 
ators, 2  railroad  managers,  and  7  conductors."  l 

One  child  sent  west  by  an  eastern  society  after- 

lTAe  Charities  Review,  December,  1899,  p.  416. 


354  The  Science  of  Penology 


wards  rose  to  be  Governor  of  a  Western  State.  It 
may  be  fairly  assumed  that  nearly  every  child  that 
has  been  rescued  by  these  societies  has  been  saved 
from  a  life  of  crime  and  shame.  Public  necessity, 
philanthropy,  reason,  and  experience  all  urge  an 
immediate  and  systematic  undertaking  of  this  great 
public  duty  by  the  State  governments.  We  may 
state  as  a  law  of  Penology  that  it  is  the  duty  of 
society  through  its  organized  government  to  provide 
proper  parental  care  and  training  for  all  neglected, 
abandoned,  defective,  and  delinquent  children. 


CHAPTER  XVIII 

THE  EDUCATION  OF  CHILDREN  IN  PUBLIC  SCHOOLS. 

Proportion  of  the  Criminal  Class  due  to  Defective  Parental  Training — Early 
Training  the  Best  Prevention  Known — Necessity  of  State  Supervision 
—  Washington's  Injunction — National  Legislation,  and  Recommenda- 
tions of  Later  Presidents — General  Grant's  Recommendations — Of  Lat- 
er Presidents,  and  Congressional  Neglect — Evidences  of  the  Failure  of 
Existing  Methods — Percentage  of  National  Illiteracy — Percentage  of 
School  Enrollment — Brevity  of  Attendance — Good  Citizenship  the  Only 
Object  of  State  Supervision — Cause  of  Failure  the  Abolition  of  Moral 
Training  from  the  Schools — Their  Control  by  Local  Boards — The  In- 
competence of  Teachers  —  Failure  Inevitable  under  the  Conditions 
— Duty  of  Congress — Private  Initiative  in  Educational  Matters  Unsatis- 
factory— Government  Initiative  and  Control  Necessary — The  Congres- 
sional Action  Required — State  Legislation  —  Mental  Education  alone 
Pernicious  —  Duties  of  District  Directors  —  Great  Value  of  Physical 
Education — How  Conducted — Principles  of  Mental  Training  —  Public 
Morals  the  Gauge  of  Civilization — Moral  Training  the  Supreme  Object 
of  the  Public  School— What  Constitutes  Morality — The  United  States 
a  Christian  Nation — Its  Public  Education  must  be  Christian — The 
Bible  its  Foundation — Correction  of  Evil  Habits —  Non-sectarian  Re- 
ligious Instruction  —  Inculcation  of  Moral  Principles  —  Knowledge  of 
the  Duties  of  Parenthood  —  How  Imparted  —  Special  Education  of 
Teachers — Conclusion. 

A  CCEPTING  the  estimates  of  criminologists 
*V  that  three  fourths  of  the  criminal  class  come 
from  the  neglected,  abandoned,  defective,  and  de- 
linquent children  who  are  permitted  to  mature  with- 
out proper  training,  the  other  quarter  must  of  course 
be  the  outgrowth  of  normal  children  who  have 
been  reared  by  their  parents.  Most  of  the  "  de- 

355 


356  The  Science  of  Penology 


linquents  "  included  in  the  seventy-five  per  cent, 
considered  in  the  preceding  chapter  are  also,  doubt- 
less, subject  to  parental  guardianship. 

Of  the  9344  convicts  committed  to  the  Elmira 
Reformatory  eighty-nine  per  cent,  lived  at  home 
until  after  they  were  fourteen  years  old,  and 
twenty-seven  per  cent,  had  secured  a  common- 
school  or  higher  education.  We  may  safely  assume, 
in  the  absence  of  positive  data,  that  at  least  one 
third  of  all  the  criminal  class  are  the  result  of  in- 
adequate or  defective  parental  training. 

"  Train  up  a  child  in  the  way  he  should  go  ;  and 
when  he  is  old,  he  will  not  depart  from  it." 
— Proverbs  xxii.  6. 

"  '  T  is  education  forms  the  mind  ; 

Just  as  the  twig  is  bent  the  tree  's  inclined." 

Pope,  Essays,  ep.  i.,  1.  149. 

These  are  adages  expressing  a  universal  convic- 
tion, the  instinctive  principle  upon  which  all  parents 
act,  a  proposition  that  no  intelligent  person  would 
be  bold  enough  to  deny,  that  any  healthy,  normal 
infant  may  be  trained,  by  suitable  means,  to  a 
maturity  of  honest,  self-supporting  citizenship. 
Therefore  we  say  not  only  that  the  public  neglect 
of  its  duty  to  the  neglected,  abandoned,  and  defec- 
tive children  who  have  no  other  capable  guardians 
is  responsible  for  three-fourths  of  the  criminals,  but 
also  that  most  of  the  other  fourth  is  to  be  charged 
against  the  defective  training  of  the  general  mass 
of  children.  We  do  not  assert  that  education,  even 
as  it  is  at  present  best  understood,  is  an  infallible 


Education  of  Children  357 


panacea  for  the  disease  of  criminality,  or  that  it  is 
possible  by  means  of  it  to  eradicate  entirely,  in  less 
than  three  generations,  the  criminal  degeneracy  of 
all  time,  but  we  do  say  that  it  is  the  chief  specific 
yet  discovered  for  its  reduction  and  prevention. 
The  great  fault  of  present  methods  is  that  we  apply 
this  remedy  in  reformatories  too  late  in  the  life  of 
the  criminal.  Most  of  the  tremendous  burden  of 
crime  is  due  to  ignorance  or  neglect  in  the  training 
of  children.  The  criminal  is  a  wild  man,  an  un- 
trained savage  in  society. 

"  The  mind  of  the  criminal  has  not  properly  developed  ; 
through  some  congenital  or  acquired  deficiency  its  develop- 
ment has  stopped  at  an  inferior  stage,  which  resembles  in  many 
respects  that  of  the  minds  of  savages  and  barbarians  ;  it  is 
therefore  naturally  incapable,  or  has  become  so  artificially,  of 
acquiring  that  self-control  and  taste  for  methodical  work 
which  are  peculiar  to  civilized  man." ' 

Criminality  manifests  itself  mostly  in  crimes 
against  property  ;  ninety-two  and  one-third  per 
cent,  of  the  commitments  to  Elmira  have  been  for 
such  crimes.  This  indicates  either  an  indisposition 
or  incapacity  to  earn  honestly  what  is  wanted  ;  both 
of  which  defects  of  character  are  naturally  corrected 
by  the  early  acquisition  of  industrious  habits.  When 
parents  neglect  to  train  their  children  properly,  so- 
ciety, which  suffers  from  such  failure,  should  remedy 
this  fault  in  self-defense.  It  becomes  necessary  for 
the  State  to  compel  a  proper  education  of  all  chil- 
dren. This  is  a  vitally  important  duty  in  a  democ- 

1  Professor  Ferrero,  The  Independent,  Nov.  8,  1900,  p.  2690. 


The  Science  of  Penology 


racy,  where  the  people  elect  their  lawmakers  and 
rulers  by  popular  vote.  Wise  legislation  and  good 
government  cannot  be  expected  from  an  ignorant  or 
immoral  people.  There  is  danger  to  the  Republic 
so  long  as  even  a  small  minority  remains  unintelli- 
gent and  liable  to  be  swayed  by  demagogues,  excite- 
ments, and  delusions.  In  the  Presidential  election 
of  1900  President  McKinley's  popular  plurality  was 
only  859,824  out  of  13,967,777  votes  cast  for  the  two 
principal  candidates.  Within  a  month  after  his 
election  financiers  estimated  the  advance  in  values 
of  property  in  the  country  to  have  averaged  at 
least  ten  per  cent.,  which  would  be,  on  the  estimated 
value  of  $100,000,000,000  of  property  in  the 
country,  an  increase  of  $10,000,000,000  due  to  his 
election.  It  is  generally  believed  by  them  (as  the 
principal  issues  were  financial)  that  the  election  of 
his  opponent  would  have  caused  a  depreciation 
in  values  of  at  least  ten  per  cent.  If  these  opin- 
ions are  correct,  the  possible  variation  of  national 
values  effected  by  that  election  amounts  to  twenty 
thousand  millions  of  dollars.  And  this  tremendous 
result  was  produced  by  the  votes  of  859,824  per- 
sons, in  a  nation  thirteen  per  cent,  of  whose  popu- 
lation in  1890  were  illiterate;  at  which  rate  we 
have  now  at  least  1,400,000  illiterate  voters,  at  the 
usual  estimate  of  one  voter  to  seven  of  population. 
This  is  a  momentous  risk  to  submit  to  the  decision 
of  people  with  an  illiterate  element  so  much  greater 
than  the  largest  majority  to  be  expected  in  such 
elections.  This  is,  however,  only  the  direct,  domestic 


Education  of  Children  359 


financial  issue.  The  far-reaching  consequences  of 
a  possible  change  of  our  relations  with  other  nations ; 
the  possibilities  of  war  ;  just  at  present  the  interests 
of  the  people  of  our  new  insular  dependencies ;  our 
influence  among  the  powers  surrounding  the  Pacific  ; 
our  future  commercial  expansion  concerning  which 
the  two  great  parties  so  widely  differed,  all  depended 
to  a  great  extent  upon  the  result  of  a  popular  elec- 
tion. Not  only  the  prosperity  but  also  the  very 
existence  of  the  Republic,  which  can  only  continue 
under  a  fair  average  of  intelligence  in  government, 
especially  now  we  have  grown  so  great  and  influen- 
tial among  the  powers  of  the  world,  depends  more 
than  ever  upon  the  intelligence,  patriotism,  and 
morality  of  the  people. 

George  Washington,  our  first  President,  that 
great  patriot  who  won  our  independence  for  us 
and  established  our  government,  in  that  sublime 
parental  benediction  which  he  bestowed  upon  us  as 
his  Farewell  Address,  recognized  this,  and  enjoined 
upon  us  the  necessity  of  public  education  in  these 
golden  words  which  should  be  ever  before  the  eyes 
and  impressed  upon  the  minds  of  our  statesmen  and 
people : 

"  Of  all  the  dispositions  and  habits,  which  lead  to  political 
prosperity,  religion  and  morality  are  indispensable  supports. 
In  vain  would  that  man  claim  the  tribute  of  Patriotism,  who 
should  labor  to  subvert  these  great  pillars  of  human  happiness, 
the  firmest  props  of  the  duties  of  men  and  citizens.  The  mere 
politician,  equally  with  the  pious  man,  ought  to  respect  and  to 
cherish  them.  A  volume  could  not  trace  all  their  connections 


360  The  Science  of  Penology 


with  private  and  public  felicity.  Let  it  simply  be  asked  where 
is  the  security  for  property,  for  reputation,  for  life,  if  the  sense 
of  religious  obligation  desert  the  oaths,  which  are  the  instru- 
ments of  investigation  in  Courts  of  Justice  ?  And  let  us  with 
caution  indulge  the  supposition,  that  morality  can  be  main- 
tained without  religion.  Whatever  may  be  considered  to  be 
the  influence  of  refined  education  on  minds  of  peculiar 
structure,  reason  and  experience  both  forbid  us  to  expect, 
that  national  morality  can  prevail  in  exclusion  of  religious 
principle. 

'  'T  is  substantially  true,  that  virtue  or  morality  is  a  neces- 
sary spring  of  popular  government.  The  rule  indeed  extends 
with  more  or  less  force  to  every  species  of  free  government. 
Who  that  is  a  sincere  friend  to  it  can  look  with  indifference 
upon  attempts  to  shake  the  foundation  of  the  fabric  ? 

"  Promote  then,  as  an  object  of  primary  importance,  institu- 
tions for  the  general  diffusion  of  knowledge.  In  proportion  as 
the  structure  of  a  government  gives  force  to  public  opinion,  it 
is  essential  that  public  opinion  should  be  enlightened."  * 

As  a  further  evidence  of  the  depth  of  his  feeling 
he  made  a  bequest  in  his  will  to  found  a  free  school 
in  Alexandria,  Virginia,  and  a  university  in 
Washington. 

Article  III.  of  the  Act  of  Congress  for  the  govern- 
ment of  the  Northwest  Territory,  passed  July  13, 
1787,  reads,  "Religion,  morality,  and  knowledge 
being  necessary  to  good  government  and  the  happi- 
ness of  mankind,  schools  and  the  means  of  educa- 
tion shall  forever  be  encouraged."  This  is  still  the 
law  of  the  United  States.  No  other  national  legis- 
lation, however,  was  had  in  furtherance  of  public 
education  until  the  establishment  of  the  National 

1  Washington's  Farewell  Address. 


Education  of  Children  361 


Bureau  of  Education,  March  2,  1867,  and  the 
amendment  of  the  Act,  June  30,  1869. 

Thomas  Jefferson,  in  his  message  to  Congress  in 
1806,  recommended  an  amendment  to  the  Consti- 
tution to  permit  the  application  of  an  anticipated 
surplus  in  the  national  treasury  "  to  the  great  pur- 
poses of  the  public  education,"  etc.1 

Abraham  Lincoln,  before  his  great  mind  became 
fully  occupied  in  the  preservation  of  our  Govern- 
ment and  the  liberation  of  the  blacks,  said,  "In  one 
word,  free  labor  insists  on  universal  education."2 

General  Grant,  whose  patriotism  was  doubly  re- 
fined in  the  furnace  of  war,  after  his  practical  mind 
had  been  expanded  by  two  terms  of  the  chief 
magistracy,  says,  in  his  seventh  annual  message  to 
Congress,  reiterating  it  in  his  eighth  : 

"  As  this  will  be  the  last  annual  message  which  I  shall  have 
the  honor  of  transmitting  to  Congress  before  my  successor  is 
chosen,  I  will  repeat  or  recapitulate  the  questions  which  I  deem 
of  vital  importance  which  may  be  legislated  upon  and  settled 
at  this  session  : 

"  First  :  That  the  States  shall  be  required  to  afford  the 
opportunity  of  a  good  common-school  education  to  every 
child  within  their  limits. 

"  Second  :  No  sectarian  tenets  shall  ever  be  taught  in  any 
school  supported  in  whole  or  in  part  by  the  State,  nation,  or 
by  the  proceeds  of  any  tax  levied  upon  the  community.  Make 
education  compulsory  so  far  as  to  deprive  all  persons  who 
cannot  read  and  write  from  becoming  voters  after  the  year 
1890,  disfranchising  none,  however,  on  grounds  of  illiteracy 
who  may  be  voters  at  the  time  this  amendment  takes  effect."3 

1  Messages  and  Papers  of  the  Presidents,  vol.  i.,  p.  409. 

2  Addresses  and  Letters  of  Abraham  Lincoln,  vol.  i.,  p.  582. 

3  Messages  and  Papers  of  the  Presidents,  vol.  vii.,  p.  356. 


362  The  Science  of  Penology 

Every  President  since  his  time,  save  one,  has 
striven  in  messages  and  on  all  appropriate  occa- 
sions to  impress  upon  Congress  and  the  people  the 
great  fundamental  and  vital  principle  of  American 
institutions,  that  the  enduring  success  of  a  free 
government  is  impossible  unless  it  provides  the 
means  of  insuring  the  intelligence  of  those  who  are 
the  source  of  power.  No  stream  can  rise  above  its 
source.  If  citizens  desire  to  maintain  a  good  gov- 
ernment, they  must  compel  their  government  to 
insure  good  citizens.  This  would  seem  to  be  a 
self-evident  proposition  to  every  patriotic  and  in- 
telligent mind,  but  the  national  government  has 
almost  entirely  neglected  action  for  this  purpose 
for  a  hundred  years ;  and  the  State  governments, 
while  generally  recognizing  their  responsibilities, 
have  hitherto  made  only  desultory  and  widely 
varying  provisions  for  the  education  of  their 
children. 

The  demands  for  increased  jail  and  prison  room  ; 
the  tremendous  bill  of  crime  ;  the  failure  of  criminal 
court  procedure  to  restrain  criminality ;  the  grow- 
ing public  disregard  for  the  sacredness  of  the  oath, 
and  the  consequent  distrust  of  the  jury  of  the  vicin- 
age ;  the  shocking  prevalence  of  copartnerships 
between  public  officials  and  the  vicious,  the  crim- 
inal, and  the  law-breaker ;  the  development  of  a 
class  of  professional  politicians  fostered  by  what 
they  see  "  in  it "  for  their  personal  advantage  ; 
the  venality  of  voters,  and  the  political  corrup- 
tion which  ramifies  throughout  the  office-holding 


Education  of  Children  363 


organization  of  government  all  give  conclusive  evi- 
dence that  the  evils  against  which  the  Father  of  our 
Country  and  our  wisest  statesmen  have  warned  us 
in  vain,  are  upon  us.  Our  public  schools,  of  the 
development  and  perfection  of  which  we  have  been 
inconsiderately  inclined  to  boast,  so  far  have  evid- 
ently failed  to  insure  that  general  good  citizenship 
upon  which  good  government  in  America  depends. 

There  are  several  reasons  for  this  failure.  The 
first  and  great  reason  is  that  they  have  not  edu- 
cated and  do  not  educate  all  the  children.  Thirteen 
and  one-third  per  cent,  of  the  people  ten  years  old 
and  over  in  1890  were  illiterate  ;  6.2  per  cent,  of  our 
native  white  population  of  this  age  were  illiterate. 
The  percentage  of  illiteracy  varied  all  the  way  from 
0.8  per  cent,  of  the  native  whites  ten  years  old  and 
over  in  Massachusetts,  to  45.8  per  cent,  of  the 
entire  population  in  Louisiana  ten  years  old  and 
over.  There  were  2,065,003  of  our  native  white 
people  ten  years  old  and  over  who  could  not  read 
or  write.  According  to  the  census  of  that  year 
35.8  per  cent,  of  the  whole  population  was  of 
school  age,  five  to  twenty  years  old. 

The  United  States  Commissioner  of  Education 
estimates  in  his  report  for  1897-98,  that  only  20.05 
per  cent,  of  the  entire  population  July  i,  1898,  were 
enrolled  in  the  public  elementary  and  high  schools. 
If  the  same  ratio  of  persons  of  school  age  exists  in 
1900  as  in  1890,  15.3  per  cent,  of  our  children,  or 
11,673,780  in  number,  are  not  even  enrolled  in  any 
schools.  Certainly  70  per  cent,  of  this  number,  or 


364  The  Science  of  Penology 


all  under  fifteen  years  old,  should  be.  There  are, 
then,  over  8,000.000  children  constantly  without  the 
advantage  of  the  public  schools.  This  is  a  dan- 
gerous, and  should  be  a  very  alarming,  condition. 

The  second  great  cause  of  this  failure  is  the 
necessary  consequence  of  the  brief  attendance  at 
school  of  those  enrolled.  The  average  number  of 
school  days  in  the  United  States  in  1897-98  was 
but  143.1  ;  and  the  average  number  of  days  at- 
tended by  each  pupil  enrolled  was  but  97.8;  the 
terms  varying  from  59  days  in  North  Carolina,  to 
192  in  New  Jersey.  In  Berlin,  the  annual  average 
is  240  days.  But  on  our  small  average  of  days, 
31. 6 1  per  cent,  of  the  pupils  were  always  absent, 
and  only  68.39  Per  cent-  attended  regularly.1  Very 
small  and  inadequate  educational  results  can  be 
expected  from  such  a  limited  and  irregular  attend- 
ance of  pupils,  even  if  the  instruction  in  the  schools 
should  be  the  very  wisest  and  best  that  can  be 
devised,  which,  unfortunately,  is  not  generally  the 
case.  It  would  be  much  better  if  all  children  of 
school  age  should  be  kept  in  school  ten  months  in 
the  year  than  that  they  should  be  overstrained  in 
the  effort  to  compress  ten  months'  education  into 
eight  months  or  less  of  cramming. 

Thus  we  come  to  the  consideration  of  the  third 
principal  cause  of  the  failure  of  public  schools. 
This  is  the  fatally  defective  plan  of  instruction 
which  has  prevailed  in  them.  The  State  assumes 
the  duty  of  educating  its  children,  primarily,  to 

1  Report  of  Commissioner  of  Education,  1897-98. 


Education  of  Children  365 


insure  an  intelligent  suffrage.  The  vital  import- 
ance of  the  general  intelligence  of  all  its  voters 
to  the  permanence  of  free  government  has  naturally 
concentrated  the  attention  of  public  instructors 
upon  intellectual  education  almost  exclusively. 
Coincidentally,  the  general  recognition  of  the  neces- 
sity of  guarding  another  fundamental  principle  of 
our  Government,  the  absolute  separation  of  Church 
and  State,  has  encouraged  the  general  abolition  of 
all  religious  and  moral  instruction  from  our  public 
schools.  This  perversion  of  principle  has  caused  a 
neglect  of  that  co-ordinate  physical  and  moral  train- 
ing of  children  which  is  absolutely  essential  to  the 
production  of  a  well-developed  character.  An  ab- 
normal product  is  the  natural  result,  of  which  the 
criminal  is  one  kind  ;  hence  the  number  of  edu- 
cated criminals  we  find,  and  the  large  percentage 
of  our  convicts  who  have  attended  the  public 
schools.  The  only  proper  object  the  State  can 
have  in  the  training  of  children  is  good  citizens. 
No  man  can  be  a  good  citizen  who  is  not  honest, 
self-supporting,  and  patriotic,  as  well  as  intelligent. 
Napoleon  Bonaparte,  Benedict  Arnold,  William  M. 
Tweed,  Dr.  Webster,  the  murderer,  ex-Governor 
Moses  of  South  Carolina,  and  many  noted  crim- 
inals, dead  as  well  as  now  living,  were  and  are  men 
of  high  intelligence,  but  very  bad  and  dangerous 
citizens. 

The  good  citizenship  which  is  necessary  in  a  free 
government  consists  of  a  strong  and  healthy  phys- 
ique, capability  and  habits  of  productive  industry, 


366  The  Science  of  Penology 


sound  moral  principles  controlling  action,  correct 
judgment  concerning  right  and  wrong  social  and 
political  action,  and  a  well  and  evenly  trained  mind. 
A  wisely  conducted  public  training  can  insure  these 
qualities  to  almost  every  child  in  that  moderate 
and  modest  degree  which  is  adapted  to  the  lower 
stations  of  life  ;  and  many  may  be  progressively 
educated  and  trained  by  it  to  a  capacity  for  the 
highest.  But,  to  accomplish  this,  education  must 
be  equally  and  uniformly  directed  to  the  simul- 
taneous culture  of  the  three  inseparable  elements 
of  every  human  being :  the  soul,  which  inspires 
action  ;  the  mind,  which  regulates  action  ;  and  the 
body,  or  physical  instrument  of  action.  The  con- 
finement of  public  education  exclusively  to  the 
mental  faculties  not  only  develops  them  dispro- 
portionately, but  also  the  constantly  increasing 
pressure  for  more  education,  caused  by  public  dis- 
appointment with  the  results  heretofore  obtained, 
competition  for  advancement  through  examinations, 
public  comparison  of  reports,  the  efforts  of  unintel- 
ligent school  boards  to  compress  a  year's  instruction 
into  eight  or  less  months  of  school  and  the  ambition 
of  teachers,  combine  so  to  overwork,  exhaust,  and 
impair  the  health  and  strength  of  the  regular  pupils 
that  the  usefulness  of  their  maturity  is  often  greatly 
reduced  instead  of  benefited  by  it.1  The  physique 
becomes  puny  instead  of  robust ;  the  soul  and  moral 
nature  is  atrophied  ;  the  superstimulated  intellect 

1  The  health  and  efficiency  of  the  teachers  is  also  greatly  impaired  by  the 
"  cramming"  of  late  school  methods. 


Education  of  Children  367 


excites  to  vicious  indulgences  ;  there  is  no  moral 
control,  and  the  whole  disposition  is  turned  to- 
wards skillful  depravity  rather  than  an  honest,  noble 
citizenship.  It  is  because  there  has  grown  up  in  the 
country  a  generation  almost  without  moral  educa- 
tion in  the  public  schools  that  skepticism,  infi- 
delity, irreligion,  atheism,  and  anarchy  are  obtruding 
themselves  more  and  more  boldly  upon  public  atten- 
tion ;  that  vice  and  immorality  are  so  very  perva- 
sively corrupting  the  social  fabric  that  the  people  in 
our  cities  are  becoming  alarmed  at  their  prevalence 
and  their  power  ;  that  popular  suffrage  is  becoming 
venal,  elections  being  decided  more  frequently  by 
money  than  by  principle  ;  that  lying,  fraud,  dis- 
honesty, bribery,  disregard  for  the  sanctity  of 
the  oath  of  office  and  in  judicial  proceedings,  false 
swearing,  perjury,  and  the  corruption  of  juries  are 
destroying  popular  confidence  in  courts  of  justice  ; 
that  cheating,  deception,  overreaching,  and  subtle 
dishonesty  in  business  affairs,  when  the  legal  penal- 
ties can  be  evaded,  are  so  much  practised,  and 
tolerated  as  "  smart "  instead  of  being  universally 
condemned  as  criminal ;  that  unselfish  patriotism  in 
politics,  a  high  level  of  honor  and  mutual  confidence 
in  business,  exact  and  certain  justice  in  legal  trials, 
and  an  incorruptible  morality  and  virtue  in  society 
are  so  far  from  that  universality  which  is  desirable. 
The  degeneracy  of  the  times,  most  of  the  crimes 
which  are  committed,  the  horrible  usurpation  of  the 
functions  of  law  by  lynchers,  are  to  be  charged  very 
largely  against  those  agencies  which  have  caused  the 


368  The  Science  of  Penology 


Bible  and  the  teaching  of  morality  and  religion  to  be 
banished  from  our  public  schools  to  a  great  extent. 

The  fourth  great  defect  of  the  American  public 
school  is  the  indefensible  transfer  of  their  entire 
control  by  the  State  to  locally  elected  boards  of 
directors.  These  boards  decide  upon  the  amount 
of  the  tax  to  be  levied ;  they  collect  and  expend  it. 
They  provide  such  schoolhouses,  accommodations, 
furniture,  supplies,  and  text-books  as  they  see  fit. 
They  fix  the  school  terms,  prescribe  the  course  of 
instruction,  employ  the  teachers,  and  fix  their 
salaries.  If  all  school  directors  were  uniformly 
intelligent,  patriotic,  and  honest  it  is  evident  that 
there  could  be  no  uniform  and  general  system  of 
public-school  education  by  these  independent  and 
heterogeneous  boards.  The  instruction  of  each 
district  will  vary  in  quality  and  quantity  according 
to  the  views  of  its  directors.  But  political  promin- 
ence, prestige,  power,  patronage,  and  profits  in  con- 
tracts and  purchases  tend  to  make  the  generality  of 
school  directors  a  part  of  the  political  machine,  and 
the  office  is  sought  more  as  a  step  in  political  pre- 
ferment, and  for  what  can  be  made  out  of  it,  than 
as  an  opportunity  to  serve  the  State  as  an  educator 
of  its  children.  Neither  the  results  nor  the  observed 
methods  of  management  indicate  that  the  majority 
of  the  school  directors  have  any  special  fitness  or 
sense  of  and  care  for  the  grave  responsibilities  of 
the  office,  under  prevailing  political  conditions. 

The  fifth  cause  of  the  failure  of  our  schools  is  the 
general  unfitness  of  the  teachers  to  whom  the 


Education  of  Children  369 


training  of  the  young  for  their  serious  work  is  com- 
mitted. The  low  rate  of  the  teachers'  pay,  which 
results  partly  from  the  desire  of  the  members  of  the 
school  board  to  expend  most  of  the  funds  in  ways 
which  can  be  made  to  inure  to  their  profit, 
and  which  averaged,  in  1897-98  for  the  United 
States,  $45.16  per  month  for  males  and  $38.74  for 
females,1  a  percentage  of  which  is  often  exacted  to 
secure  an  appointment  and  the  retention  of  a  situa- 
tion ;  the  wire-pulling  and  management  required 
to  secure  positions,  and  the  practice  of  making  ap- 
pointments for  one  year  only,  all  tend  to  restrict 
applicants  to  those  of  a  low  degree  of  equipment 
and  competence,  and  make  our  public  schools  a 
nursery  of  mediocrity  instead  of  a  sphere  of  talent 
for  teachers.  The  lack  of  proper  regulations  for 
the  examination  and  selection  of  teachers,  and  for 
their  subsequent  promotion  in  position  and  salary 
for  ability  and  experience,  also  restricts  the  aspir- 
ants for  teachers'  certificates  to  those  of  moderate 
ability,  to  young  women  who  can  find  no  other 
reputable  employment,  and  to  effeminate  young 
men.  This  also  largely  prevents  pedagogy  from  be- 
coming the  honorable  and  attractive  profession  it 
should  be,  and  the  art  of  teaching  from  being 
studied  and  adopted  as  a  life-work  by  young  men 
and  women  of  ambition  and  ability.  Teachers  can- 
not feel  secure  in  their  positions  when  they  are 
appointed,  moved  about,  and  dismissed  for  political 
reasons,  regardless  of  merit.  As  a  consequence, 

1  Report  of  United  States  Commissioner  of  Education  for  2899. 


37°  The  Science  of  Penology 


they  are  apt  to  perform  their  duties  perfunctorily, 
with  little  of  that  inspiring  interest  in  their  pu- 
pils which  is  so  essential  to  successful  instruction. 
They  teach  mainly  for  their  own  self-support  and 
to  retain  their  salary.  It  is  vain  to  expect  thought- 
ful training,  thorough  instruction,  and  inspiration  to 
higher  ideals  from  teachers  who  perform  their 
daily  duties  as  drudges.  Nor  is  any  uniform  or 
general  effort  made  to  prepare  them  for  or  impress 
them  with  either  the  individual,  social,  or  national 
responsibilities  which  rest  upon  the  public-school 
teacher.  Very  slight  if  any  attention  is  given  to 
the  special  natural  qualifications  which  are  so  vital 
to  the  successful  training  of  children,  and  very 
superficial  examination  made  in  many  instances  of 
even  mental  requirements.  It  is  not  magnificent 
buildings,  great  libraries,  or  expensive  apparatus 
which  are  wanted,  so  much  as  liberal  salaries,  which 
will  attract  capable  instructors,  secure  them  posi- 
tions of  self-respecting  independence  above  the 
humility  of  poverty,  and  the  inspiration  of  a  hope 
for  promotion  for  faithful  service  beyond  the  reach 
of  politicians. 

Under  prevailing  conditions  the  failure  of  our  pub- 
lic schools  to  reduce  criminality,  or  insure  the  intelli- 
gence, morality,  and  good  citizenship  of  the  whole 
people,  is  inevitable.  Our  national  dependence 
upon  them  to  safeguard  free  popular  government, 
support  political  prosperity,  and  sustain  the  power 
and  integrity  of  the  Republic  is  a  dangerous  delusion. 
No  voluntary,  desultory,  unscientific,  unregulated, 


Education  of  Children  371 


and  unsystematic  education  of  the  children  of  a 
free  people  can  possibly  meet  the  requirements 
of  a  popular  government  of  society  on  its  present 
plane  of  civilization.  It  is  manifestly  neither 
economical,  wise,  nor  safe  for  the  people  to 
intrust  these  vital  functions  to  the  unregulated,  un- 
directed, and  more  or  less  unintelligent  control  of 
district  boards  of  directors  composed  of  local  poli- 
ticians. In  other  departments  of  their  political 
economy  they  control  and  regulate  the  action  of 
public  officials  by  general  laws.  The  time  has 
come  for  both  national  and  provincial  statesmen  to 
give  heed  to  the  solemn  advice  of  the  Father  of 
his  Country,  and  the  repeated  recommendations  of 
our  greatest  statesmen  and  most  patriotic  men. 
The  national  Congress,  to  provide  for  the  public 
welfare,  and  control  the  public  schools,  under  the 
power  given  it  in  Art.  I.,  Sec.  VIII.,  of  the  Consti- 
tution, must  discharge  its  duty  by  prescribing  the 
universal  establishment  and  the  general  regulations 
of  a  complete  public-school  system,  which  shall  pro- 
vide the  means  and  insure  the  proper  education  of 
all  children  under  sixteen  years  of  age  in  the  land. 
The  several  States  must  assume  the  full  support 
and  control  of  this  system  of  schools,  in  accord  with 
the  objects  and  methods  of  the  national  regulations. 
Private  and  local  initiative  and  regulation  in 
public  education  supported  by  taxation  is  as  false 
in  principle  as  it  is  unsatisfactory  in  practice.  This 
is  manifest  from  the  fact  that  the  more  ignorant 
any  community  is,  the  more  it  needs  good  schools  ; 


372  The  Science  of  Penology 


while  this  very  ignorance  not  only  disqualifies  it 
for  a  wise  provision  of  them,  but  even  prevents  a 
recognition  of  the  need  itself.  There  can  be  no 
desire  or  want  for  that  of  which  there  is  no  know- 
ledge. Our  lately  acquired  population  in  Puerto 
Rico  and  the  Philippines  do  not  want  to  acquire 
our  language,  or  American  Institutions,  because 
they  are  entirely  oblivious  of  the  wealth  of  inform- 
ation which  familiarity  with  our  language  would 
open  up  to  them,  and  of  the  inestimable  blessings 
which  our  institutions  would  bestow.  The  bene- 
ficent principle  of  decentralization  of  power,  which 
is  a  conservative  element  of  popular  government  in 
its  executive  and  repressive  functions,  is  inapplic- 
able to  its  educational  powers.  The  people  must 
cling  closely  to  the  powers  of  restraint  and  limita- 
tion which  they  delegate,  but  it  is  naturally  im- 
possible for  them  to  originate,  or  manage,  the 
influences  which  will  lift  them  up  above  themselves. 
These  must  of  necessity  be  exerted  from  above  by 
those  who  are  superior  in  wisdom  and  intellect  to 
the  masses.  Governmental  control  of  public  edu- 
cation is  therefore  theoretically  and  philosophically 
as  sound  and  correct  as  it  is  practically  necessary. 

The  reformation  of  our  public  schools  must  begin 
in  our  legislatures.  The  system  of  public-school 
education  should  be  inaugurated  at  Washington. 
It  is  therefore  the  duty  of  our  Congress,  in  order 
to  promote  the  public  welfare  and  insure  that 
good  and  intelligent  citizenship  at  home  which  it 
does  not  hesitate  to  take  measures  to  compel  in 


Education  of  Children  373 


Puerto  Rico  and  the  Philippines,  and  upon  which 
the  perpetuity  of  our  popular  government  depends, 
to  constitute  a  National  Bureau  of  Education  for 
the  supervision  and  regulation  of  the  education 
and  training  of  all  the  children  of  the  people.  This 
bureau  should  be  empowered  to  prescribe  the 
general  plan  of  instruction,  collect  and  distribute 
information  concerning  popular  education,  and  re- 
commend such  Congressional  or  State  legislation  as 
may  be  necessary  to  accomplish  its  objects.  Three 
commissioners  should  be  placed  at  its  head  ;  ap- 
pointed by  the  President,  by  and  with  the  advice  of 
the  Senate,  for  a  term  of  ten  years,  with  a  salary 
equal  to  that  of  the  justices  of  the  Supreme  Court. 
The  official  term  should  be  made  long,  to  avoid  the 
danger  of  frequent  changes  of  plans  and  methods, 
and  the  salary  large,  to  attract  the  best  talent,  be- 
cause the  position  is  not  less  responsible  than  that 
of  the  Supreme  Court  justices.  One  commissioner 
should  be  a  professional  expert  in  physical,  one  in 
intellectual,  and  one  in  the  moral  training  of  child- 
ren. In  order  to  induce  and  promote  legislation 
by  the  several  States  calculated  to  insure  honest 
and  intelligent  citizenship,  all  national  legislation 
for  their  benefit  and  advantage  should  be  condi- 
tioned upon  the  enactment  by  them  of  the  plans 
and  methods  recommended  by  the  National  Bureau 
of  Education. 

The  direct  responsibility  for  good  citizenship 
rests,  of  course,  upon  the  State  legislatures.  The 
citizens  of  the  States  have  to  settle  the  bill  of  costs 


374  The  Science  of  Penology 

of  crime,  pauperism,  and  ignorance,  and  suffer  the 
penalties  of  misgovernment.  It  devolves  upon 
them  to  secure  relief  by  their  own  legislation. 
This  may  be  accomplished  by  prescribing  that  all 
children  shall  be  properly  trained  and  instructed 
physically,  mentally,  and  morally,  until  they  reach 
sixteen  years  of  age,  upon  the  general  plan  recom- 
mended by  the  National  Bureau  of  Education  ;  and 
by  providing  good  free  public  schools  and  facilities 
for  the  education  of  all  children  who  are  not  other- 
wise instructed.  The  State  must  assume  the  con- 
trol and  general  management  of  all  public  schools  ; 
fix  the  length  of  school  terms  ;  enforce  regular  at- 
tendance ;  supply  the  text-books,  apparatus,  and 
furniture  ;  prescribe  the  course  of  instruction  and 
training,  the  qualifications  of  teachers,  fix  their  sal- 
aries, issue  certificates,  permanent  during  satis- 
factory service,  provide  for  their  instruction  in 
pedagogy,  their  promotion  by  merit  from  the  lower 
to  the  higher  grades,  and  for  the  encouragement  of 
a  professional  class  of  teachers.  The  State  should 
assess,  collect,  and  distribute  the  school  tax,  accord- 
ing to  the  population  of  each  district.  It  should  in- 
stitute a  department  of  public  education,  with  a 
general  superintendent  and  subordinate  superintend- 
ents in  each  district,  who  should  be  charged  with 
the  educational  direction  of  all  public  schools,  and 
the  duty  and  power  of  compelling  the  attendance  of 
all  children  under  sixteen  years  upon  some  school 
during  the  regular  terms.  This  department  should 
organize  the  public  schools  in  three  grades,  according 


Education  of  Children  375 


to  the  requirements  of  each  locality,  for  primary, 
grammar,  and  high  schools  * ;  and  arrange  the  class- 
ification of  scholars  in  each.  It  should  institute 
normal  schools  for  the  instruction  of  teachers, 
examine  and  approve  all  plans  for  new  or  changes 
in  old  buildings,  and  generally  execute  the  school 
laws  in  all  matters  relating  to  public  education. 

The  belief  which  prevails  in  the  mind  of  the  pub- 
lic, and  which  controls  the  instruction  of  the  aver- 
age teacher,  is  that  public-school  education  must  be 
entirely  mental  ;  that  its  object  is  simply  to  instill 
knowledge  into  vacant  brains.  This  is  a  pernicious 
belief,  a  theory  which  in  practice  tends  to  prevent 
rather  than  promote  good  citizenship  by  cultivat- 
ing inordinately  only  one  of  the  three  essential 
elements  of  character,  and  thus  produces  an  ab- 
normal instead  of  a  symmetrical,  normal  result.  No 
child  is  properly  trained  unless  equal  attention  is 
devoted  to  body,  mind,  and  soul,  and  a  co-ordinate 
and  symmetrical  growth  of  each  is  secured.  The 
paramount  purpose  of  the  public  education  of  child- 
dren  by  a  State,  especially  one  founded  upon  the 
principle  of  self-government,  must  necessarily  be  to 
teach  the  individuals  who  are  to  constitute  the  State 
an  intelligent  government  of  themselves.  For  how 
can  a  person  who  cannot  wisely  govern  his  own  ac- 
tions individually  be  capable  of  social  self-govern- 
ment in  the  more  extensive  and  complex  relations 

1  Dr.  Schaffer,  State  Superintendent  of  Public  Instruction  in  Pennsylva- 
nia, estimates  in  his  report  for  1900  that  about  one  sixth  of  the  population 
of  that  State  does  not  have  the  advantages  of  the  high  school,  on  account 
of  rural  situation. 


376  The  Science  of  Penology 


of  political  life  ?  The  people  must  first  learn 
to  govern  themselves  wisely  as  individuals.  It 
is  impossible  that  the  aggregate  enactments  by 
the  people  for  the  people  should  be  wiser  or 
better  than  the  average  intelligence  and  conduct 
of  the  majority.  Public-school  instruction  must, 
therefore,  be  directed  to  the  formation  of  an  in- 
telligent, self-controlled  character.  This  is  im- 
possible without  strong  principles  and  sound 
morality.  The  State  must  supplement  all  that 
parental  training  of  children  fails  to  supply, 
in  physical  and  moral,  as  well  as  in  mental  educa- 
tion, proceeding  along  each  line  of  direction  simul- 
taneously and  uniformly.  The  rational  plan  and 
order  of  subordination  is  that  laid  down  by  Herbert 
Spencer : 

"  that  education  which  prepares  for  direct  self-preserva- 
tion ;  that  which  prepares  for  indirect  self-preservation  ;  that 
which  prepares  for  parenthood  ;  that  which  prepares  for  citi- 
zenship ;  that  which  prepares  for  the  miscellaneous  refine- 
ments of  life." 

To  which  we  would  add,  as  most  important  of  all, 
that  which  prepares  the  soul  for  immortality. 
Without  this  all  the  rest  is  vain,  incomplete,  and 
insufficient  for  its  purpose.  Moral  education,  the 
inculcation  of  a  disposition  for  and  a  power  of  self- 
control  by  high  principle  and  virtue,  the  fixing  of 
the  goal  of  life  and  effort  in  the  eternity  which  fol- 
lows its  brief  span — that  is  the  main  object  of  public- 
school  education,  as  well  as  that  of  all  the  mortal 
life.  This  order  and  plan  should  be  enacted  by  the 


Education  of  Children  377 


State,  and  not  left  to  the  discretion  of  district- 
school  boards. 

The  duties  of  the  district-school  directors  should 
be  confined  entirely  to  the  material  and  economi- 
cal interests  of  the  schools.  They  should  build  the 
schoolhouses,  provide  the  apparatus,  play  and  ex- 
ercise grounds  ;  have  the  care  and  charge  of  the 
heating,  lighting,  supplies,  repairs,  and  maintenance 
of  school  property  ;  pay  the  teachers  and  employees, 
and  be  responsible  for  the  honest  and  wise  ex- 
penditure of  the  school  funds  assigned  to  their 
district.1 

Physical  education  has  far  more  utilitarian  value 
to  the  child  and  the  State  than  mental,  notwith- 
standing the  slight  attention  it  has  hitherto  received 
in  the  public  schools.  The  great  majority  of  child- 
ren are  destined  for  lives  of  physical  labor.  For 
them  health,  strength,  and  skill  will  be  the  chief 
means  of  support,  comfort,  happiness,  and  progress. 
If  health  and  strength  are  lost,  all  is  lost.  To  gain 
the  whole  world  of  knowledge  by  the  sacrifice  of 
good  health  profiteth  nothing.  It  is  certain  that 

1  The  importance  of  this  responsibility  may  be  estimated  from  the  state- 
ment that  the  expenditures  for  public  schools  in  the  State  of  Pennsylvania 
for  the  year  ending  June  4,  1900,  amounted  to  §21, 476, 994. 90  ;  the  value  of 
the  school  property  being  estimated  to  be  $54,797,506.32.  The  State  of 
New  York  expends  annually  more  than  $47,000,000  on  education.  The 
total  amount  expended  in  the  United  States  during  the  year  1897-98,  the 
last  reported  by  the  Commissioner  of  Education,  was  $194,020,470,  equal 
to  an  average  of  $2.67  per  head  of  population.  The  expenditure  varied 
from  $5.07  in  Massachusetts,  where  it  was  highest,  to  $0.53  in  North  Caro- 
lina, where  it  was  lowest.  The  average  expenditure  per  pupil  for  the  year 
was  $18.86,  which  varied  in  the  several  States  from  a  maximum  of  $39.10 
in  Massachusetts  to  a  minimum  of  $3.59  in  Alabama. 


The  Science  of  Penology 


no  circumstance  of  human  life,  neither  rank,  sta- 
tion, opportunity,  genius,  talent,  nor  wealth,  is  as 
conducive  to  success  and  happiness  in  our  mortal 
lives  as  sound  health.  The  first  object  of  the  pub- 
lic school  should  assuredly  be  the  development  of 
a  strong  and  healthy  physique  for  every  child. 
There  should  be  medical  examinations  every  term 
for  defects  of  the  senses  ;  prescription  of  special 
physical  culture,  and  regular  daily  free  gymnastics 
in  every  schoolroom  with  wand,  dumb-bell,  and 
breathing  exercises.  A  course  of  scientific  athlet- 
ics should  be  prescribed  for  the  correction  of  cura- 
ble physical  defects ;  exercises,  sports,  and  games 
should  be  encouraged,  with  the  stringent  enforce- 
ment of  the  code  of  honor  in  them  as  a  part  of  the 
moral  culture.  For  the  preservation  of  health,  daily 
instruction  should  be  given  in  its  laws  concerning 
food,  drink,  air,  cleanliness,  exercise,  rest,  work, 
play,  sleep,  the  force  of  habits,  and  especially  of 
bad  habits.  To  cultivate  skill,  muscular  celerity, 
activity,  endurance,  and  habits  of  regular  work,  the 
earning  powers  and  capacity,  manual  and  industrial 
training  in  the  ordinary  avocations  of  male  and  fe- 
male life — for  boys  the  handling  and  use  of  com- 
mon tools,  for  girls  in  the  duties  of  housekeeping, 
cooking,  and  sewing, — should  be  practised  as  a  part 
of  the  daily  routine,  not  with  a  view  to  any  special 
trade,  but  to  the  development  of  dexterity,  facility, 
and  strength,  which  will  enable  the  graduate  to 
acquire  his  trade  more  quickly  when  he  begins  to 
work.  Physical  culture  should  begin,  like  the  mental 


Education  of  Children  379 


T 

with  the  primary  elements  at  the  first  entrance 
of  the  pupil  into  the  school,  and  should  be  progress- 
ive according  to  age,  in  its  physiological,  hygienic, 
sanitary,  and  utilitarian  departments,  concluding 
with  instruction  in  that  almost  universal  function, 
almost  universally  neglected,  the  care,  rearing,  and 
training  of  children  and  the  duties  of  parenthood, 
which  is  the  first  and  greatest  responsibility  of  citi- 
zenship. It  is  not  only  essential  in  a  utilitarian 
sense,  but  a  very  important  reflex  contribution  to 
the  general  culture,  by  the  increase  of  vigor  which 
it  cultivates  in  the  brain  and  nervous  system. 

Mental  training  in  elementary  public  schools,  as 
in  all,  has  for  its  primary  object  the  stimulation, 
development,  and  discipline  of  the  intellectual  fac- 
ulties of  the  brain.  It  is  the  means,  but  not  the 
main  object  of  all  education ;  of  instruction  in 
knowledge,  as  well  as  in  physical  and  moral  culture. 
It  is  to  be  accomplished  by  the  continuous  exercise 
of  all  the  faculties  and  functions ;  by  the  study  of 
objects  more  than  of  words  and  books  ;  by  a  con- 
tinuous exercise  of  memory,  of  the  reasoning  pow- 
ers, the  weighing  of  arguments  for  and  against 
various  propositions,  of  judgment,  and  the  mathe- 
matical faculties.  Special  powers  should  be  encour- 
aged and  stimulated,  but  for  the  mass  of  children 
there  should  be  no  effort  to  crowd  the  mind  with 
very  much  more  than  the  necessary  knowledge  of 
the  use  of  printed,  written,  and  spoken  language, 
arithmetic,  elementary  geography,  history,  and  the 
science  of  living.  Many  of  the  evils  complained  of 


380  The  Science  of  Penology 


under  present  methods  of  overcrowding  pupils  with 
studies  will  be  corrected  if  a  large  portion  of  the 
time  now  given  over  to  strictly  literary  work  shall 
be  occupied  with  inculcating  the  principles  and 
habits  of  correct  living.  It  is  unnecessary,  in  this 
work,  to  enlarge  upon  the  methods  of  mental  cult- 
ure. The  reader  is  referred  for  details  to  the  ex- 
position of  this  subject  by  the  great  masters  in  the 
art  of  teaching, — to  Comenius  in  the  seventeenth, 
and  Herbert  Spencer,  Matthew  Arnold,  Horace 
Mann,  Professor  John  Swett,  and  many  others  in 
the  nineteenth  century. 

The  degree  of  its  public  morality  is  the  only  cor- 
rect gauge  of  the  actual  progress  of  a  people  in  civil- 
ization. Literature,  science,  inventions,  art,  wealth, 
and  numbers  have  brought  in  the  past,  and  may  still 
bring,  temporary  distinction  and  power  to  a  nation, 
but  races  and  states  endure  only  according  to  their 
public  morals.  The  spiritual  is  the  only  element  of 
national  life  which  is  immortal,  as  it  is  of  the  indi- 
vidual human  life.  The  great  nations  and  states  of 
the  past  all  perished  of  the  disease  of  immorality. 
History,  philosophy,  observation,  science,  and  per- 
sonal experience,  therefore,  each  and  all  declare  that 
the  cultivation  of  the  moral  nature  of  its  children 
is  the  first  great  duty  of  the  State.  If  the  morals  of 
the  children  are  made  healthy  and  sound,  then  all  else 
is  safe.  Then  nature  will  preserve  physical  health, 
strength,  and  numbers ;  intelligence,  patriotism, 
and  all  the  other  civic  virtues  will  flourish  spontan- 
eously, and  free  government  continue  on  the  earth. 


Education  of  Children  381 


Moral  training  must  be  made  the  predominating 
purpose,  the  supreme  object  of  public-school  educa- 
tion. To  this  everything  else  should  contribute. 
All  instruction,  regulation,  exercise,  discipline,  and 
every  influence  should  be  so  designed  as  to  develop 
and  mold  the  spiritual  nature  of  the  children,  in 
preference  to  the  intellectual.  The  good  moral  char- 
acter to  be  assured  consists  of  a  correct  discrimina- 
tion between  what  is  right  and  what  is  wrong,  the 
capacity  of  self-control,  and  the  disposition  to  prefer 
right  action  to  wrong  against  every  temptation.  In- 
struction inculcates  correct  judgment ;  exercise  and 
repetition  strengthen  self-control  and  make  habit ; 
high  motives  and  habit  create  disposition.  These 
are  the  recognized  means  by  which  moral  training  is 
to  be  effected.  They  must  be  brought  to  bear  on  the 
soul,  the  conscience,  that  mysterious  and  least-known 
third  element  of  every  human  being,  of  whose  exist- 
ence everyone  is  conscious,  and  that  it  must  continue 
to  exist  forever.  Its  secret  seat  in  the  living  body 
scientific  research  has  failed  to  discover,  but  it  has 
been  demonstrated  that  it  is  capable  of  develop- 
ment like  the  mind  and  the  body  which  it  inhabits, 
and  that  this  development  corresponds  with  and  de- 
pends upon  bodily  and  mental  development,  just  as 
the  mental  does  upon  the  physical.  H owever  limited 
scientific  knowledge  is  concerning  it,  no  rational  man 
can  deny  the  existence  of  the  soul  ;  that  it  is  the  real 
entity  which  constitutes  and  inspires  morality,  and 
that  it  is  capable  of  culture  and  development.  Moral 
training  consists  in  implanting  right  principles  and 


382  The  Science  of  Penology 


motives  in  the  soul,  which  governs,  and  instilling 
habits  of  action  in  accord  with  them.  The  con- 
sciousness of  immortality  must  be  strengthened,  the 
great  object  of  human  life  explained  to  be  the  pre- 
paration for  eternal  life,  and  the  relation  of  the  soul 
to  the  Creator  and  Ruler  of  the  universe  must  be 
early  made  the  theme  of  study  and  instruction. 

Concisely  defined,  morality  is  conformity  to  Divine 
law.  All  human  laws,  customs,  manners,  actions,  and 
intentions  which  violate  the  laws  of  the  Creator  con- 
cerning our  nature,  our  relations  to  Him  and  to  one 
another,are  immoral.  Conformity  tothelawsof  God 
istheonlyinfallible  testof  morality.  Mere  obedience 
under  compulsion,  or  conformity  to  human  or  social 
laws  (which  may  or  may  not  conform  to  Divine  law) 
without  regard  to  their  Divine  origin  and  authority, 
cannot  constitute  morality,  or  that  condition  of  public 
morals  upon  which  the  strength  and  perpetuity  of 
a  free  state  depends.  As  the  laws  of  God  are  uni- 
versal in  their  sovereignty,  and  not  tobe  violated  with 
impunity,  it  necessarily  follows  that  the  establish- 
ment of  any  practicable  or  beneficent  code  of  ethics 
or  morals  for  the  regulation  of  human  conduct  which 
does  not  recognize  this  Divine  origin  and  authority, 
but  which  professes  to  be  independent — without  re- 
lations with  God,  entirely  human  and  social  in  origin 
and  operation — is  illogical  and  irrational.  A  God- 
less code  of  ethics  has  no  foundation  to  rest  upon  ex- 
cept this  basis  of  the  grossest  immorality,  a  denial  of 
the  sovereignty  of  the  Creator.  It  is  self-contradic- 
tory, an  attempt  by  a  fraud  to  make  human  action 


Education  of  Children  383 


conform  to  truth,  honesty,  and  rectitude.  There  can 
be  no  wholesome  moral  training  of  children  which 
ignores  God,  or  omits  religious  instruction.  The 
laws  of  God  are  the  only  laws  which  the  mind  can- 
not question,  dispute,  or  resist,  and  which  the  soul 
accepts  instinctively,  without  argument,  as  rules  of 
action.  They  are  therefore  the  easiest  to  impress 
upon  the  soul,  as  well  as  the  most  powerful  and  per- 
manent in  their  influence.  Hence  it  is  the  impera- 
tive duty  of  the  State  to  begin  the  moral  training 
of  its  children,  in  the  schools  which  it  provides  for 
its  self-protection,  with  the  inculcation  of  religious 
principles. 

The  American  government  is  a  Christian  gov- 
ernment. America  was  settled  and  taken  in 
possession  by  Christians.  Our  Declaration  of 
Independence  as  a  people,  in  its  first  sentence  as- 
sumes "  the  separate  and  equal  station  to  which 
the  laws  of  nature  and  nature's  God  entitle  them," 
and  in  its  last  closes  "  with  a  firm  reliance  on  the 
protection  of  Divine  Providence."  Our  independ- 
ence was  won  in  this  spirit,  and  our  government 
established  by  a  Christian  people  for  a  Christian 
people.  Our  State  constitutions  and  our  laws  are 
framed  upon  and  recognize  Biblical  and  Christian 
principles.  Congress  appropriated  $20,000  for  the 
importation  of  Bibles  during  the  Revolutionary 
War  when  they  became  scarce.  The  oaths  of  our 
Presidents  and  all  our  public  officials  are  solem- 
nized upon  the  Bible.  Our  laws  are  administered 
and  executed  by  means  of  juries  and  witnesses 


384  The  Science  of  Penology 


sworn  upon  the  Bible.  The  observance  of  the 
Christian  Sabbath  is  enforced  by  law,  and  it  is 
characterized  all  over  the  world  as  the  "  American 
Sabbath."  The  great  public  messages  and  docu- 
ments recognize  the  sovereignty  of  God.  Our 
Presidents  annually  enjoin  upon  the  people  to  ren- 
der thanks  to  God  for  the  blessings  of  the  year. 
The  history  of  our  progress  as  a  nation  is  divided 
into  three  distinct  epochs  by  our  self-sacrificing 
devotion  to  Christian  principles.  The  first  step 
was  winning  independence  as  a  State,  with  civil 
and  religious  liberty,  in  answer  to  the  prayers  of  a 
pious  people,  led  by  Washington  on  his  knees 
in  the  snows  of  Valley  Forge.  The  second  step 
was  the  consolidation  of  all  our  States  into  one 
nation  by  the  sacrifice  of  359,52s1  of  our  choicest 
sons  to  free  the  land  from  human  slavery,  in 
obedience  to  a  Christian  conscience  and  the  over- 
ruling will  of  God.  The  third  great  epoch  opened 
upon  us  unsought,  when  we  unselfishly  took  up 
arms  in  Christian  charity  at  the  cry  of  distress 
from  our  neighbor,  Cuba,  and  were  transformed  in 
the  Providence  of  God,  suddenly,  into  one  of  the 
greatest  world  powers,  with  interests  and  influence 
diverted  from  ourselves  to  all  mankind  ;  from  a 
selfish,  egoistic,  to  an  altruistic  nation.  The  unex- 
pected and  stupendous  issues  to  us  as  a  people 
from  these  three  critical  national  events  give  evid- 
ence that  the  Ruler  of  all  the  earth  bestows  great 
reward  upon  nations  which  are  governed  by  His 

1  Regimental  Losses  in  the  Civil  War,  Fox,  p.  46. 


Education  of  Children  385 


will.  It  behooves  us  not  to  forsake  the  founda- 
tions upon  which  the  fathers  built,  or  the  principles 
which  have  given  us  the  most  that  is  valuable 
which  we  have  and  are.  The  lamp  of  our  national 
experience  guides  our  course  in  the  regeneration 
of  our  people  through  their  public  schools.  It 
indicates,  no  less  certainly  than  science,  philosophy, 
and  reason,  that  the  State  must  compel  the  educa- 
tion of  all  its  children  in  religious  morality  to  in- 
sure the  public  welfare. 

Not  only  is  our  government  a  Christian  govern- 
ment in  fact,  principle,  and  practice,  but  it  is  a 
self-government  of  its  people  by  the  will  of  the 
majority,  which  always  has  been  and  is  now  very 
largely  Christian.  So  long  as  this  condition  con- 
tinues, its  government  and  institutions  are  of  right 
and  ought  to  be  Christian.  We  refuse  its  bless- 
ings to  no  one  of  good  character,  we  guarantee  to 
all  perfect  liberty  of  religious  faith  and  practice,  we 
tolerate  all  religions,  but  can  permit  no  one  who 
differs  from  our  national  standards  to  dictate 
changes  in,  or  assume  to  control,  our  established 
institutions  or  the  public  education  of  our  children. 
What  we  do  as  a  people  or  a  State  shall  be  done 
pursuant  to  the  principles  upon  which  we  are 
organized. 

The  Bible  is  the  recognized  source  and  guide  of 
our  national  religious  belief  and  morals.  We  must 
insist  that  it  shall  continue  to  be  used  in  our  public 
schools  daily,  as  the  basis  of  moral  instruction,  and 
that  all  schools  shall  be  opened  with  an  invocation 


386  The  Science  of  Penology 


of  the  blessing  of  God  upon  the  work  of  the  ses- 
sion. The  substitution  of  a  salute  to  the  flag  for 
the  religious  opening  of  schools  is  a  substitution 
of  a  symbol  for  a  fact,  —  a  surrender  of  the 
essence  of  good  citizenship  and  patriotism  to  its 
semblance.  That  patriotism  which  has  been  our 
safeguard  in  the  past  has  grown  out  of  the  Bible. 
Let  the  flag  be  saluted  with  due  solemnity,  with 
prayer  to  God,  and  in  the  presence  of  the  opened 
Word  of  God,  in  order  that  patriotism  and  rever- 
ence, as  the  basis  of  public  morality,  may  be  daily 
instilled  into  the  souls  and  habits  of  the  children. 

As  many  pupils  will  have  come  from  overcrowded 
tenements,  homes  of  ignorance  and  poverty,  the 
corruption  of  the  streets,  and  some  from  depraved 
associations,  the  first  duties  of  the  teachers  will  be 
to  eradicate  germs  of  vice  and  immorality  already 
propagated  in  their  natures.  The  weeds  must  be 
rooted  out  before  good  seed  can  be  planted,  and  the 
better  children  should  be  protected  from  evil  com- 
munications. Profanity,  obscenity,  vulgarity,  slang, 
improper  speech,  slander,  tattling,  lying,  theft,  dis- 
honesty, selfishness,  and  all  meanness  must  be  not 
only  prohibited,  but  made  to  appear  despicable,  to 
be  avoided  and  abhorred.  "  Children  should  not 
only  be  taught  what  is  right ;  they  must  also  be 
made  to  do  what  is  right.  The  school  is  a  minia- 
ture world  ;  in  one  way  or  another  it  affords  oppor- 
tunities for  the  practice  of  most  of  the  moral 
virtues." l  This  practice  must  be  continued  until 

1  American  Public  Schools,  Swett,  p.  294. 


Education  of  Children  387 


it  becomes  a  habit.  "  The  moral  nature  must  be 
called  into  daily  exercise  until  habits  of  right 
thinking  result  in  habits  of  right  doing."1  What 
Herbert  Spencer  calls  the  "  normal  reaction "  of 
wrong  doing  should  be  relied  upon  for  its  correction 
and  punishment.  Thus  for  obscenity,  vulgarity,  and 
corrupting  conduct,  entire  separation  and  seclusion 
from  the  well-behaved  would  be  the  natural  remedy. 
But  successful  moral  culture  will  depend  upon  the 
nature  and  wisdom  of  the  teacher  more  than  all  else. 
There  ought  not  to  be,  and  is  not,  any  insuper- 
able difficulty  in  the  arrangement  of  a  scheme  of 
religious  instruction  for  general  use  in  the  public 
schools  which  would  be  Christian  but  not  sectarian, 
against  which  no  truly  patriotic  Christian  of  any 
denomination  or  sect,  Protestant  or  Catholic,  could 
raise  any  rational  objection,  and  which  would  also 
observe  the  principle  of  the  separation  of  Church 
and  State.  Concerning  the  fundamental  and  ele- 
mentary doctrines  of  religion,  which  only  should  be 
taught  in  the  public  schools,  all  Christians  are 
agreed.  They  are  common  to  all,  the  basis  upon 
which  all  rest,  and  they  can  be  taught  without 
prejudice  of  the  youthful  mind  for  or  against  any 
particular  sect  or  denomination.  All  sectarian 
tenets,  dogmas,  and  peculiarities  of  theory,  belief, 
or  practice  should,  of  course,  be  interdicted  from 
the  plan  of  instruction.  The  recognition  of  the 
sovereignty  of  God,  the  Creator  and  Ruler  of  the  uni- 
verse, and  man's  accountability  to  Him  for  his  con- 

1  American  Public  Schools  Swett.  p.  293. 


388  The  Science  of  Penology 


duct  in  this  mortal  life,  the  Ten  Commandments,  the 
grand  summary  of  Christ,  "  Thou  shalt  love  the 
Lord  thy  God  with  all  thy  heart,  and  with  all  thy 
soul,  and  with  all  thy  mind,  and  thy  neighbor  as 
thyself,"  those  parts  of  the  Bible  concerning  which 
there  is  no  dispute,  some  simple  forms  of  daily 
prayer,  and  some  of  the  universal  hymns  of  praise 
can  be  arranged  so  that  they  may  be  prescribed  as 
a  part  of  the  regular  daily  exercises  and  instruction 
of  the  children,  and  so  make  our  public  schools 
effectively  safeguard  the  State  and  the  people 
against  the  gangrene  of  immorality. 

The  germs  of  truthfulness,  honesty,  honor,  love 
of  justice,  fair  dealing,  of  cheerful  obedience  to 
law,  of  altruism  and  self-denial  for  the  good  of 
others,  must  be  implanted  by  interesting  stories 
illustrating  the  value  of  these  virtues  to  historical 
characters  whom  the  pupils  admire,  and  nurtured  by 
suitable  stimulating  rewards  for  their  practice. 

"  The  chief  use  of  history  study  is  to  form  moral  notions  in 
children.  Every  deed  of  heroism,  of  benevolence,  of  charity, 
of  patriotism,  is  a  concrete  embodiment  of  a  precious  virtue, 
while  every  mean,  cowardly,  dastardly  act  is  an  individual  pro- 
test against  meanness,  cowardice,  or  villainy.  We  can  only 
continue  to  deposit  about  these  starting-points  until  at  last  the 
soul  is  strong  in  itself  to  stand  against  temptation." ' 

"  Precept  upon  precept,  line  upon  line,"  and 
repetition  until  action  becomes  habitual  and  invol- 
untary, establish  a  moral  disposition.  Intelligence 
and  strength  sufficient  for  the  constant  control  of 

1  American  Public  Schools,  Swett,  p.  297. 


Education  of  Children  389 


action   by  correct  principle  constitute  moral  char- 
acter. 

Another  most  important  department  of  educa- 
tion which  is  almost  entirely  neglected  ought  to  be 
adopted,  especially  in  the  upper  grades  of  the  pub- 
lic schools,  although  elementary  instruction  in  it 
may  begin  in  the  lower,  and  that  is  instruction  in 
the  care  and  nurture  of  infants  and  in  the  duties  and 
responsibilities  of  parentage.  It  may  be  assumed 
that  nearly  every  child  who  lives  to  maturity  will 
become  a  parent,  to  whatever  sphere  of  life  it  is 
destined,  and  that  the  succeeding  generation  will 
depend  more  upon  the  intelligence  and  faithfulness 
of  its  discharge  of  parental  duties  than  all  else.  It 
is  surprising  that  this  supreme  and  universal  func- 
tion of  the  race  should  be  so  entirely  ignored  in 
educational  processes. 

"  As  the  family  comes  before  the  State  in  order  of  time,  as 
the  bringing  up  of  children  is  possible  before  the  State  exists, 
or  when  it  has  ceased  to  be,  whereas  the  State  is  rendered 
possible  only  by  the  bringing  up  of  children,  it  follows  that 
the  duties  of  the  parent  demand  closer  attention  than  those  of 
the  citizen  ;  or,  to  use  a  further  argument,  since  the  goodness 
of  society  ultimately  depends  upon  the  nature  of  its  citizens, 
and  since  the  nature  of  its  citizens  is  more  modifiable  by  early 
training  than  by  anything  else,  we  must  conclude  that  the 
welfare  of  the  family  underlies  the  welfare  of  society.  And 
hence  knowledge  directly  conducing  to  the  first  must  take 
precedence  of  knowledge  directly  conducing  to  the  last."  ' 

"  Some  acquaintance  with  the  first  principles  of  physiology 
and  the  elementary  truths  of  psychology  is  indispensable  for 

1  Education,  Herbert  Spencer,  p.  33. 


39°  The  Science  of  Penology 

the  right  bringing  up  of  children.  We  doubt  not  that  this 
assertion  will  by  many  be  read  with  a  smile.  That  parents  in 
general  should  be  expected  to  acquire  a  knowledge  of  subjects 
so  abstruse,  will  seem  to  them  an  absurdity.  And  if  we  pro- 
posed that  an  exhaustive  knowledge  of  these  subjects  should 
be  obtained  by  all  fathers  and  mothers,  the  absurdity  would 
indeed  be  glaring  enough.  But  we  do  not.  General  princi- 
ples only,  accompanied  by  such  detailed  illustrations  as  may 
be  necessary  to  make  them  understood,  would  suffice.  And 
these  might  be  readily  taught  ;  if  not  rationally,  then  dogmat- 
ically. Be  this  as  it  may,  however,  here  are  the  indisputable 
facts  :  That  the  development  of  children  in  mind  and  body 
rigorously  obeys  certain  laws  ;  that  unless  they  are  in  a  great 
degree  conformed  to,  there  must  result  serious  physical  and 
mental  defects  ;  and  that  only  when  they  are  completely  con- 
formed to,  can  a  perfect  maturity  be  reached.  Judge,  then, 
whether  all  who  may  one  day  be  parents  shall  not  strive  with 
some  anxiety  to  learn  what  these  laws  are."  ' 

But  as  they  have  not,  and  do  not,  and  will  not  so 
strive  for  this  knowledge  in  childhood  any  more 
than  any  other  which  they  need  and  which  the 
State  is  compelled  to  impart,  the  State  must  confer 
this  also  upon  its  wards,  as  its  most  reliable  pre- 
venient  of  degeneracy. 

It  will  be  evident  from  this  outline  that  it  will  be 
impossible  to  decide  upon  the  competence  of  teach- 
ers for  these  grave  responsibilities  by  a  mere  ex- 
amination into  their  intellectual  education,  and  that 
special  training  only  can  prepare  them  for  the 
proper  discharge  of  their  duties.  Therefore  the 
laws  must  prescribe  that  no  one  shall  be  intrusted 
with  the  education  of  children  in  the  public  schools 

1  Education,  Herbert  Spencer,  p.  64. 


Education  of  Children  391 


who  has  not  received  such  a  training  in  a  normal 
school  which  provides  it  according  to  the  prescrip- 
tion and  to  the  satisfaction  of  the  educational 
department  of  the  State.  The  chief  duty  of  the 
State  will  be  to  insure  the  highest  competence  of 
the  teachers  in  its  schools.  A  certificate  of  this 
from  the  State  department  of  instruction  should 
be  the  only  warrant  for  a  teacher's  place  in  the 
public  schools. 

A  complete  and  general  system  of  public  educa- 
tion which  will  compel  the  harmonious  and  co- 
ordinated culture  of  all  children  in  the  three 
elements  of  good  citizenship  in  every  individual,  up 
to  the  age  of  fifteen  years,  in  either  private  or  pub- 
lic schools,  instituted  and  enacted  by  national  and 
State  legislatures,  is  not  only  the  chief  safeguard 
of  free  government,  but  the  cheapest,  most  compre- 
hensive, and  effective  measure  for  the  restriction 
and  prevention  of  the  disease  of  criminality  which 
can  be  adopted. 


CHAPTER  XIX. 

KINDERGARTENS    AND    ORPHANAGE    TRAINING. 

The  Vital  Importance  of  Good  Maternal  Culture  in  Early  Infancy  —  The 
State  Must  Insure  the  Education  of  all  its  Females  in  Maternal 
Duties —  Ignorance  of  this  Prevalent  among  the  Best-Educated  —  Im- 
portance of  Competent  Nurses  and  Governesses — Need  of  Training 
the  Middle  Class — Help  as  well  as  Instruction  Required  by  the 
Lowest  Class  —  Necessity  of  State  Instruction  on  Account  of  Negroes 
and  Immigrants  —  Obligation  upon  the  State  to  Insure  Competence  of 
Mothers  —  To  be  Secured  through  the  Kindergarten  —  The  Idea  of 
the  Kindergarten  — Confirmed  by  Science  —  Universality  of  the  Law 
of  Development  —  Froebel's  Object  —  Kindergartens  to  Supplement 
Maternal  Deficiencies  —  Growth  of  Kindergartens  —  Results  Observed 
—  Mother  Training — Essential  Part  of  Public-School  System — Kinder- 
garten Normal  Schools  —  Kindergartens  a  Subprimary  — Who  Should 
Attend — Compulsory  Attendance — State  Must  Care  for  Every  Child — 
Kindergartens  in  Orphanages  —  Regulations  —  Only  State  Care  Ade- 
quate —  Moral  Obligation  of  the  State. 

WE  have  overrun  the  lines  of  the  hostile  forces 
down  to  children  below  the  school  age,  and 
have  even  eliminated  from  them  all  those  abandoned 
and  defective  infants  who  are  of  necessity  the  wards 
of  the  State.  Our  Science  has  made  its  prescrip- 
tions for  curing  the  various  familiar  phases  of  moral 
depravity,  and  for  the  restriction  of  its  development 
in  the  social  mass.  We  have  now  come  to  a  study 
of  that  plastic  period  of  human  life  which  nature 
commits  almost  exclusively  to  the  mother's  care 
and  training.  The  real  embryonic  condition  of 

392 


Kindergartens  and  Orphanage  Training  393 


mankind  continues  up  to  five  or  six  years  of  age, 
when  education  in  the  popular  sense  can  begin. 
Before  this,  it  devolves  upon  the  mother  to  feed, 
cultivate,  and  stimulate  the  rudimentary7  germs  of 
health,  intelligence,  and  morals,  dormant  in  every 
infant's  nature,  into  action  and  a  symmetrical  de- 
velopment. Upon  maternal  solicitude,  intelligence, 
and  devotion  during  the  first  six  years  of  infancy, 
depends,  more  than  upon  all  else  which  may  be 
done,  the  character  and  career  of  every  human  being. 
It  is  for  her  anxious  eye  to  detect  the  first  sign  of 
hereditary  abnormality  and  to  strive  to  remedy  it, 
whether  physical,  mental,  or  moral,  before  the  ten- 
der organs  take  their  permanent  set.  It  is  for  her 
tender  care  to  shield  the  helpless  child  from  harm  of 
body,  mind,  or  soul  which  might  warp  or  distort 
them  from  uniform  rectitude  of  growth.  It  is  the 
wisdom  of  her  training  that  will  so  vitalize  and  cul- 
tivate the  latent  functions  as  to  best  prepare  them 
for  growth  and  development  by  the  education  of 
childhood.  So  great  and  permanent  is  the  effect  of 
this  maternal  culture  that  it  may  be  safely  asserted 
that  nearly  the  whole  criminal  class  has  grown  up 
without  good  and  intelligent  mothers,  and  that 
scarcely  any  good  and  intelligent  mother  has  failed 
to  rear  her  children  into  honest  respectability  of 
life.  Such  mothers  are  fewer  by  far  than  have  failed 
to  rear  physically  healthy  and  strong  children. 
Whenever  the  child  of  a  good  mother  goes  astray 
or  is  arrested  for  crime  it  causes  a  profound  as- 
tonishment to  all  who  are  familiar  with  the  family, 


394  The  Science  of  Penology 


as  an  unnatural  and  abnormal  result,  not  to  be  ex- 
pected or  rationally  accounted  for.  Such  unusual 
and  accidental  occurrences  are  commonly  attributed 
not  so  much  to  defective  training  as  to  obscure 
hereditary  weaknesses,  or  to  peculiar  circumstances 
against  which  the  usual  training  of  a  good  mother 
was  an  inadequate  protection.  Society  owes  all  its 
great  and  good  men  to  good  mothers,  and  most  of 
its  criminals  to  bad  ones.  For  an  ignorant,  incap- 
able, or  neglectful  mother,  however  excellent  and 
loving  her  own  character,  may  be  a  bad  mother.  A 
failure  to  kindle  into  life  and  to  develop  the  germs 
of  morality  and  intelligence  in  an  infant's  nature, 
while  it  is  under  her  exclusive  care  in  these  first  six 
years  of  its  life,  is  as  detrimental  to  its  future  as 
starvation,  or  carelessness  of  its  physical  health. 
The  latent  germs  of  morals  and  mind  are  most 
easily  atrophied  or  deformed  in  the  embryonic 
period  of  infancy,  when  they  yield  without  resistance 
to  the  gentlest  touch.  They  may  be  given  a  bent  or 
direction  by  a  word  or  look  which  afterwards  only 
vigorous  and  persistent  training  can  alter,  just  as  a 
child  may  be  made  permanently  bow-legged  by 
being  allowed  to  rest  its  weight  on  its  feet  while  its 
bones  are  still  soft,  or  right-  or  left-handed  by  being 
made  to  hold  things  in  either  hand  exclusively  for 
a  couple  of  weeks  while  the  muscles  are  in  their 
pulpy  condition.  Many  hereditary  defects  may 
likewise  be  corrected  by  suitable  infantile  correct- 
ives, if  intelligently  supplied,  as  experience  has 
abundantly  demonstrated.  The  uplifting  of 


Kindergartens  and  Orphanage  Training  395 

humanity,  the  progress  of  civilization,  the  welfare 
of  society,  good  citizenship,  the  public  health, 
intelligence,  and  honesty,  depend  much  more 
generally  upon  the  good  maternal  training  of  child- 
ren than  even  upon  hereditary  influences.  The 
early  environment  of  good  maternity  is  a  far  more 
influential  factor  in  social  morals  than  even  pater- 
nal heredity.  A  good  mother  is  worth  at  least  two 
generations  of  good  fathers. 

"  The  causes  of  crime  are  legion  in  number.  But  if  the  ques- 
tion were  asked,  What  cause  contributes  more  than  any  other 
to  the  formation  of  criminal  character  ?  I  believe  the  students 
of  crime  and  those  who  have  had  practical  experience  in  deal- 
ing with  criminals  in  prison  would  all  unite  with  substantial 
unanimity  in  this  answer:  The  inefficiency  or  absence  of  par- 
ental discipline  in  early  life"  ' 

The  first  measure  of  social  sanitation,  then,  the 
supreme  and  universal  hygienic  effort  which  must 
be  made  to  purify  the  great  source  of  moral  de- 
pravity and  reduce  the  continuous  supply  of  crimi- 
nality in  the  rising  generations,  will  be  to  insure 
good  mothers  for  them.  The  education  and  train- 

o 

ing  of  mothers  for  their  maternal  duties  takes  pre- 
cedence of  the  general  education  of  its  children  by 
the  State.  It  is  the  initial  step,  the  only  reliable 
basis  and  sure  foundation  upon  which  to  build  any 
hopeful  scheme  of  human  regeneration.  It  is  the 
fundamental  principle  of  social  hygiene  that  the 
State  shall  insure  the  proper  education  of  all  its 
females  in  the  duties  of  motherhood, 

1  Eugene  Smith,  Parental  Responsibility  for  Crime. 


396  The  Science  of  Penology 


This  duty  is  especially  urgent  in  our  own  country 
because  of  the  ignorance  concerning  these  duties 
which  prevails  even  in  our  best-educated  society.  It 
is  doubtful  if  half  the  well-educated  girls  who  marry 
have  received  any  special  instruction  in  preparation 
for  the  discharge  of  these  grave  responsibilities,  or 
have  given  them  any  thought.  When  a  mother's 
duties  come  to  them  amid  the  high  demands  of  our 
advanced  civilization,  they  find  themselves  little 
better  qualified  than  the  mothers  of  a  savage  race  ; 
for  they  are  forced  to  rely  upon  nature,  upon  the 
maternal  instinct,  as  did  the  mothers  of  early  days, 
for  guidance  in  the  nurture  of  their  child.  Thus 
they  are  deprived  of  the  legitimate  and  necessary 
advantages  which  modern  science  and  the  experi- 
ence of  all  time  should  afford  them  in  meeting  the 
enlarged  requirements  of  existing  social  conditions. 
With  the  best  intentions,  they  often  secure  only  the 
results  of  incompetence,  the  humiliations  and  sor- 
rows of  failure. 

But  in  the  upper  classes  of  society,  mothers  who 
can  afford  the  expense  employ  nurses  and  gov- 
ernesses to  train  their  children  for  them.  They  shift 
the  care  and  burden  of  child  nurture  over  upon 
those  who  are  willing  to  relieve  them  of  it  for  pay. 
Thus  there  comes  to  be  a  demand  upon  the  lower 
and  less-educated  working  classes  for  a  class  of 
nurses  and  governesses  whose  occupation  is  child 
nursing. 

It  is  especially  important  to  the  public  weal  that 
the  girls  of  this  class  should  be  properly  trained  to 


Kindergartens  and  Orphanage  Training  397 

rear  up  with  wisdom  those  who  are  destined  for 
social  leadership,  and  whose  example  and  character 
will  exert  wide  influence  and  control.  They  cer- 
tainly should  be  taught  how  to  supply  the  most 
efficient  and  beneficent  motherhood  before  they  are 
entrusted  with  so  great  a  responsibility  ;  for  some 
of  the  most  dangerous  and  corrupt  members  of 
society  are  the  ruined  young  men  of  strong  heredi- 
tary will  and  capacity. 

The  prospective  mothers  of  the  great  mass  of 
our  citizens,  the  working  people,  whose  education  is 
confined  to  that  supplied  by  the  public  and  private 
schools,  are  as  a  general  rule  kept  in  careful  ignor- 
ance of  the  cares  and  duties  of  this  principal  nat- 
ural object  of  their  lives.  Their  own  mothers  are 
either  ignorant  themselves,  or  refrain,  from  some 
mistaken  notion  of  delicacy,  from  imparting  what 
they  do  know ;  and  the  schools  give  no  special 
instruction  to  the  older  girls  in  child  care  and 
training.  So  the  most  of  them  come  to  mother- 
hood as  insensible  of  its  responsibilities  and  as 
incapable  of  discharging  them  as  their  own  mothers 
were  before  them.  Thus  the  dead  level  of  the 
class  and  its  social  plane  remains  undisturbed,  gen- 
eration after  generation,  and  fails  to  receive  that 
initial  impetus  which  ought  to  come  from  a  uniform 
and  harmonious  awakening  of  all  its  powers  in 
infancy.  Good  health,  common  sense,  and  the 
rules  of  virtue,  temperance,  and  religion  preserve 
the  status  of  the  majority  and  protect  society  from 
serious  degeneration  in  this  section  of  its  elements ; 


39^  The  Science  of  Penology 


but  defective  training  contributes  many  recruits 
to  the  criminal  class  who  might  have  been  reared 
to  usefulness,  honesty,  and  happiness  if  their 
mothers  had  been  instructed  how  to  do  it.  This  is 
the  class  which  mostly  supplies  the  paid  nurses  and 
governesses  of  the  wealthy. 

It  is  from  the  poor,  the  ignorant,  and  depraved 
lower  stratum  of  society,  that  the  largest  number 
are  added  to  the  criminal  ranks.  Here  the  mothers 
are  not  only  generally  ignorant,  and  oblivious  of 
any  duty  beyond  the  physical  nourishment  of  their 
offspring,  but  the  struggle  for  existence  so  presses 
upon  them  that  there  is  little  time  left  for  child 
nurture.  As  soon  as  the  children  are  old  enough  to 
look  out  somewhat  for  themselves  they  are  turned 
into  the  street  to  be  out  of  the  way.  Here  they 
grow  up  like  weeds  in  the  gutter.  The  animal 
nature  has  stimulus  and  development,  but  the  men- 
tal is  only  exercised  in  cunning,  in  trickery,  in  de- 
ception, guile,  and  theft ;  profanity,  obscenity,  and 
lying  are  its  first  lessons  ;  and  the  moral  or  spiritual 
nature  remains  dormant.  Every  sight  of  the  eye, 
every  sound  to  the  ear,  every  desire  of  the  heart, 
every  impulse,  of  necessity  is  to  evil  and  not  good. 
When  the  child  of  the  gutter  is  old  enough  for 
school  he  has  become  wicked  enough  to  be  an 
unfit  associate  for  better-reared  children  ;  a  danger- 
ous infection  to  introduce  into  the  schools,  and  an 
intractable  subject  for  the  teacher.  He  is  already 
likely  to  be  a  disturber  of  the  peace  of  the  school, 
and  a  breaker  of  whatever  rules  interfere  with  his 


Kindergartens  and  Orphanage  Training  399 

untrained,  savage  will;  a  "presumptive  criminal" 
who  lacks  only  years  and  strength  to  entitle  him  to 
his  degree  as  a  criminal  in  fact  as  well  as  in  possi- 
bility. The  mothers  of  this  class  need  not  only 
instruction,  but  help.  That  their  children  may  be 
nursed  into  even  the  moderate  development  suit- 
able to  their  stations,  they  must  be  assisted  by 
those  who  have  the  necessary  knowledge  and  dis- 
position. 

The  necessity  for  the  intervention  of  the  State 
to  provide  this  general  protection  and  help  is 
greater  in  our  self-governed  country  than  in  any 
other  nation.  In  the  first  place,  we  have  an  im- 
mense mass  of  uneducated  and  but  partially  civil- 
ized negroes  who  are  rearing  their  young  up  as 
qualified  voters  generation  after  generation,  largely 
in  an  untrained  state  of  nature,  without  any  general 
or  systematic  public  effort  for  their  improvement. 
Although  they  constitute  over  thirteen  per  cent, 
of  our  population,  the  great  majority  of  the  colored 
population  in  the  South  are  densely  ignorant  of  the 
morals  and  manners  of  social  life  which  we  deem 
essential  to  individual  comfort  and  public  pro- 
sperity, and  of  the  duties  and  responsibilities  of  the 
citizenship  which  we  have  thrust  upon  them.  The 
really  great  characters  which  the  black  race  has 
produced  in  other  lands  and  in  our  own,  and  the 
very  remarkable  improvement  of  those  who  have 
been  subjected  to  the  brief  influences  of  the  Hamp- 
ton and  other  educational  institutions,  have  demon- 
strated that  there  are  no  inherent  or  insuperable 


400  The  Science  of  Penology 


obstacles  to  the  elevation  of  our  black  fellow  citi- 
zens by  suitable  culture  to  the  general  plane  of  our 
civilization.  No  intelligent,  fair  mind  can  now 
doubt  that  this  great  part  of  our  population  is 
capable  of  being  transformed  into  as  good  and  use- 
ful citizenship,  of  being  made  as  valuable  to  the 
country,  as  any  other  equal  number  of  Americans. 
If  they  are  permitted  to  continue  in  their  present 
savage  ignorance,  they  must  be  an  increasing 
menace  to  society  and  free  government,  a  con- 
stantly growing  increment  to  the  criminal  class. 
Elementary  education  alone  cannot  effect  this  trans- 
formation of  character.  They  must  be  taught  how 
to  live  ;  the  principles  of  domestic  sanitation  and 
hygiene,  of  parental  duty,  of  virtue,  honesty,  mor- 
ality, patriotism,  and  religion.  Their  spiritual  nat- 
ure must  be  developed  in  infancy,  and  trained 
by  habit  of  right  action  into  principle.  This  work 
must  begin  with  the  negro  mothers.1 

And,  in  the  second  place,  a  horde  of  impover- 
ished and  ignorant  immigrants  is  continually  pour- 
ing into  the  country  from  all  parts  of  the  world. 
They  settle  among  us  with  the  customs  and  habits 
of  the  down-trodden  of  other  lands,  entirely  ignor- 
ant, generally,  of  everything  which  we  cherish  as 
necessary  to  good  citizenship,  and  devote  all  their 
efforts  to  securing  food,  clothes,  and  shelter.  Ab- 
sorbed in  the  struggle  for  a  meagre  living,  they  are 
content  to  exist  without  thought  of  an  improve- 
ment in  their  degraded  condition.  That  they  may 

1  See  "  The  Criminal  Negro,"  Frances  A.  Keller,  The  Arena,  Feb.,  1901. 


Kindergartens  and  Orphanage  Training  401 

be  assimilated  into  our  body  politic  and  cease  to  be 
a  debasing  and  dangerous  element  in  our  com- 
munity they  should  be  taught  how  to  live  as  we 
live  ;  how  to  feed  and  clothe  themselves,  how  to 
nurture  and  care  for  their  children,  how  to  become 
our  future  electors,  how  to  observe  our  laws  and 
respect  the  rights  of  others,  as  their  predecessors 
have  been  taught.  This  teaching  will  be  most 
effectively  done  by  showing  them  how  to  be  more 
comfortable,  healthy,  and  happy,  through  the  im- 
provement of  the  condition  of  the  children  who  are 
brought  under  the  influence  of  trained  Kinder- 
gartners.  Through  their  children  we  may  find  the 
most  welcome  introduction  into  their  homes  and 
confidence,  and  be  permitted  to  instruct  the  mothers 
in  home-making,  healthy  living,  cooking,  and  in- 
telligent nursing,  in  cleanliness,  and  in  godliness. 
This  door  of  approach  our  Kindergartners  find 
always  open  to  them. 

The  object  of  organized  government  is  the  pro- 
vision of  means  by  which  the  community  can 
secure  for  the  common  welfare  and  protection  the 
advantages  which  its  individual  members  do  not 
possess,  and  are  unable  alone  to  obtain.  It  is 
therefore  incumbent  upon  government  to  supply,  so 
far  as  it  is  able,  all  the  requirements  of  the  common 
welfare  as  soon  as  they  are  manifested.  Pursuant 
to  this  theory  the  State  undertakes  the  education 
of  its  children.  It  will  fail  to  attain  this  object 
economically  and  satisfactorily  unless  it  extends 
its  care  a  step  farther  and  insures  the  universal 


402  The  Science  of  Penology 


competence  of  its  mothers  as  well  as  the  sanity,  mor- 
ality, temperance,  and  health  of  its  fathers.  The 
safety  and  welfare  of  society  require,  as  we  have 
stated  in  the  preceding  chapter,  that  all  children 
shall  receive  what  instruction  it  is  possible  to  impart 
to  them  in  the  public  schools  concerning  the  pro- 
per discharge  of  the  duties  of  parentage,  which 
is  the  most  general  function  of  mankind. 

"  This  topic  should  occupy  the  highest  and  best  place  in 
the  course  of  instruction  passed  through  by  each  man  and 
woman.  As  physical  maturity  is  marked  by  the  ability  to 
produce  offspring,  so  mental  maturity  is  marked  by  the  ability 
to  train  those  offspring."  ' 

But  we  require  more  imperatively  than  this, 
under  the  existing  conditions  in  our  country,  the 
general  and  special  instruction  of  the  mothers  of 
our  future  citizens  in  the  scientific  care  of  infancy. 

Private  philanthropy  and  individual  initiative  have 
recognized  and  undertaken  the  discharge  of  this 
great  social  responsibility  and  have  demonstrated 
the  practicability  and  utility  of  a  method  of  accom- 
plishing this  object  by  experiments  with  the  great 
Froebel's  Kindergarten  (child-garden)  system  of 
infant  nurture  during  the  last  twenty-five  years. 

Frederick  Froebel,  a  genius,  born  in  1782,  a  "re- 
former not  only  of  the  art  of  teaching,  but  of  the 
entire  theory  of  education,"  formulated  a  practicable 
theory  for  the  nurture  of  infants  below  the  school 
age  as  a  logical  induction  from  the  loftiest  and 
largest  possible  generalization,  which  has  since  been 

1  Herbert  Spencer,  Education,  p.  162. 


Kindergartens  and  Orphanage  Training  403 


confirmed  by  experiment  and  substantiated  by  the 
psychological  and  physiological  discoveries  of  mod- 
ern science.  He  said  in  the  peroration  of  the 
speech  in  which  he  explained  his  system  in  the 

Kursaal  at  the  Lubenstein  Spa,  in  1851  : 

» 

"  The  whole  of  nature,  up  to  the  appearance  of  man,  the 
whole  of  history  from  the  beginning  of  the  human  race  through 
all  the  past  up  till  the  present  moment,  and  then  still  onwards 
beyond  us  to  the  next  final  consummation,  when  the  develop- 
ment of  man  shall  fall  from  the  Tree  of  Life  as  a  ripened  fruit, 
whose  Kernel  is  the  All,  stands  before  my  soul  as  a  perfectly 
accurate  and,  so  to  speak,  an  exhaustive  representation  of  true 
education." 

Science  confirms  this  induction  by  demonstrating 
the  analogy  of  the  progression  of  the  growth  of  the 
human  embryo  from  the  original  ovum,  through  the 
various  forms  of  animal  life,  from  the  lowest  up  to 
its  birth  as  a  perfect  human  infant,  complete  in  all 
its  organs.  Its  proofs  are  the  successive  awaken- 
ing, after  the  birth  of  the  infant,  of  the  latent  de- 
sires, perceptions,  and  powers  of  consciousness,  one 
after  another,  from  simple  hunger  up  to  filial  love 
and  obedience  ;  from  entire  egoism  to  altruism  in 
harmony  with  the  progress  of  the  human  race  as  a 
whole.  Action  is  proved  to  cause  the  development 
of  the  strength  of  each  and  every  function,  psychical 
as  well  as  physical ;  repeated  action  constituting 
habit  and  principle.  It  announces  action  to  be  the 
first  and  universal  law  of  growth. 

We  observe  also  that  this  educative  action  is 
stimulated  by  appeals  to  nature  through  the  medium 


404  The  Science  of  Penology 


of  the  senses  and  desires  ;  that  only  those  powers 
become  active  which  are  thus  aroused  ;  and  that 
every  function  lies  dormant  until  it  is  thus  started 
into  action,  and  rests  without  growth  unless  it  is 
stimulated  by  need.  Thus  we  recognize  in  the  life 
of  each  human  being,  as  its  various  stages  of  pr*o- 
gress  are  discovered  by  science,  an  epitome  of  the 
universe,  and  are  taught  to  imitate  in  personal  edu- 
cation the  methods  of  nature,  and  of  God.  The 
law  of  development  is  the  same  from  protoplasm  to 
perfection,  from  the  ovum  to  the  universe. 

The  object  which  Froebel  had  in  view  and  to 
which  he  devoted  his  whole  life  was  the  complete 
and  uniform  development  of  the  child  nature  dur- 
ing its  infancy,  so  that  it  might  grow  up  with 
ability  to  use  all  its  powers.  He  founded  his  in- 
fant nurture  on  this  universal  law,  adapting,  after 
careful  study  and  experiment,  practical  contrasts  of 
excitements  and  activities  to  arouse  the  innate  but 
dormant  germs  of  perception,  reflection,  reason,  and 
the  will.  At  the  same  time  he  accustomed  the 
plastic  sentiments  of  the  child  nature  to  right 
choices  and  desires  ;  so  that  rectitude  of  action 
should  become  habitual,  and  moral  principle  a  con- 
trolling element  of  character.  He  called  this  his 
"  mediation  of  contrasts,"  and  "  law  of  balance." 

"Our  little  lives  are  kept  in  equipoise 

By  opposite  attractions  and  desires  ; 
The  struggle  of  the  instinct  that  enjoys, 

And  the  more  noble  instinct  that  inspires." ' 

1  H.  W.  Longfellow. 
26 


Kindergartens  and  Orphanage  Training  405 

He  said : 

"  Not  the  training  of  the  memory,  not  learning  by  rote,  not 
familiarity  with  the  appearance  of  things  ;  but  culture  by 
means  of  action,  facts,  and  life  itself,  bring  a  blessing  upon 
the  individual,  and  thereby  a  blessing  upon  the  whole  com- 
munity ;  since  each  one,  be  he  the  highest  or  the  humblest,  is  a 
member  of  the  community  ;  now  the  training  of  the  kinder- 
gartner  is  alike  of  the  head  and  heart,  and  educates  at  one  and 
the  same  time  toward  skilfulness  in  action  and  toward  rect- 
itude in  life."  : 

He  observed  how  far  even  the  best  of  mothers 
come  short  of  achieving  the  best  results,  and  how 
very  inefficient  the  most  are  from  ignorance  or  neg- 
lect, and  devised  a  plan  to  supplement  maternal 
nursing  in  his  Kindergartens ;  to  train  in  them 
nurses,  governesses,  and  mothers  in  considerable 
numbers,  as  Kindergartners  of  his  system,  so  that 
it  might  become  generally  used  in  all  families.  The 
children  of  the  poor  and  ignorant  were  to.  be  first 
cared  for,  during  the  period  of  their  neglect,  to  the 
relief  of  their  parents,  for  their  own  protection  from 
degeneracy,  and  their  proper  nurture.  Training- 
schools  for  the  instruction  of  Kindergartners  in  the 
science  of  his  methods  were  urged  as  essential  to 
success.  By  personal  appeals,  public  lectures,  writ- 
ings, and  publications,  he  labored  for  the  first  half 
of  the  last  century  to  bring  his  methods  and  plan 
into  general  use,  but  died  before  he  was  permitted 
to  see  their  general  adoption,  even  by  his  own  peo- 
ple. It  has  required  the  education  of  fifty  years  to 

1  Froebel's  appeal  to  German  wives  and  maidens,  Letters  on  the  Kinder- 
garten, p.  224. 


406  The  Science  of  Penology 

disseminate  a  fair  understanding  of  the  grave  im- 
portance of  his  project  among  even  the  more  in- 
telligent classes  in  civilized  nations ;  but  it  is  now, 
at  the  close  of  the  century  of  seed-sowing,  coming 
to  be  accepted  as  an  essential  element  of  the  educa- 
tion of  the  people. 

The  growth  of  his  great  idea  has  been  slow,  but 
strong  and  permanent ;  greater  naturally  in  Europe, 
where  the  seed  was  first  sown,  than  in  America, 
where  he  predicted  it  would  find  its  most  congenial 
soil.  But  its  recent  progress  here  has  been  very 
rapid,  and  with  constant  acceleration.  There  were, 
for  instance,  in  1870,  only  five  Kindergartens  in  the 
United  States ;  but  the  National  Commissioner  of 
Education  reports  for  the  year  1896-97  (the  latest 
published  report)  a  total  of  1077,  with  2024  teach- 
ers and  81,916  pupils.  The  larger  cities  have  been 
the  first  to  appreciate  and  avail  themselves  of  their 
advantages,  because  in  them  the  need  is  greatest 
and  most  impressive.  The  same  report  enumerates: 

In  Chicago,  53  Kindergartens,  108  teachers,  and  4577  pupils. 

"  Boston,  64  "  125         "  "    4822       " 

"  St.  Louis,        100  "  281         "  "    9154 

"   Philadelphia,  122  "  163         "  "    6225       " 

"  villages,  80  "  139         "  "    4717       " 

The  average  cost  of  tuition  was  given,  for  the 
year  reported,  as  $16.73  f°r  each  pupil  belonging, 
or  $11.78  for  each  pupil  enrolled,  during  the  year. 
Only  a  few  of  the  more  progressive  and  intelligently 
managed  school  departments  have,  however,  as  yet 
incorporated  the  Kindergarten,  on  any  large  or  com- 
prehensive scale,  in  their  public-school  systems.  It 


Kindergartens  and  Orphanage  Training  407 

is  still  mostly  dependent  upon  the  varying  opinion 
and  decision  of  local  school  boards,  or  private  phil- 
anthropy and  charity. 

The  results  of  these  tentative  and  desultory  ef- 
forts, so  far  as  it  has  been  possible  to  observe  and 
record  them,  have  been  highly  satisfactory  and  en- 
couraging. Kindergarten  children  are  reported  to 
be  far  more  apt,  tractable,  and  well-behaved  when 
they  enter  the  public  schools,  than  those  of  the 
same  age  who  have  not  received  this  training  and 
development.  Their  minds  are  more  receptive  and 
active ;  their  physical  health  is  stronger ;  their 
habits  are  better,  cleaner,  and  more  correct  ;  their 
moral  nature  more  fully  developed.  They  conse- 
quently make  better  progress  in  their  studies, 
and  derive  more  benefit  from  them,  than  the  other 
children.  Of  some  ten  thousand  who  have  passed 
through  the  Kindergartens  of  San  Francisco,  not 
one  has  so  far  been  arrested  upon  a  criminal  charge. 
Considering  that  most  of  these  children  come  from 
the  lowest  and  poorest  families,  from  the  most  ignor- 
ant parentage,  and  most  debasing  environment, 
whence  we  might  reasonably  expect  the  least  hope- 
ful scholars,  these  results  seem  to  be  an  unanswer- 
able argument  in  favor  of  the  general  assumption 
of  the  very  small  expense  connected  with  the  main- 
tenance of  Kindergartens  by  the  State.  Science 
proclaims  it  now  as  an  incontrovertible  fact,  an 
axiom  of  human  progress,  that  every  dollar  that 
the  State  expends  in  providing  that  wise  and  uni- 
form nurture  of  its  children  which  they  need  before 


408  The  Science  of  Penology 


reaching  school  age,  is  worth  ten  spent  after  that  in 
correction  and  education,  and  a  thousand  expended 
for  protection  from  criminality,  and  the  reforma- 
tion of  criminals. 

The  actual  nurture  of  infants,  however,  is  only 
one  of  the  great  offices  of  the  Kindergarten.  To 
train  ignorant  mothers  so  that  they  may  be  compet- 
ent and  disposed  to  continue  the  Kindergarten 
nurture  in  the  family  is  probably  more  largely  ben- 
eficial to  society  than  the  child-nurture  it  is  itself 
able  to  bestow.  This  mother-training  is  effected  in 
several  directions,  and  by  several  means.  The  gen- 
eral institution  of  Kindergartens  for  the  children 
of  the  masses  would  create  a  demand  for  so  large  a 
number  of  qualified  Kindergartners  as  to  render 
necessary  special  schools  for  their  instruction 
Thus  a  large  proportion  of  the  young  women 
would  receive  a  training  for  which  at  present  no  in- 
centive exists.  As  a  necessary  preparation  for  this 
training,  general  elementary  education  in  parental 
duties  would  become  an  important  part  of  the  pub- 
lic-school course,  and  would  thus  reach  all  the  peo- 
ple. General  interest  would  be  awakened  in  the 
subject  of  child-nurture,  and  all  who  expect  to 
marry  would  have  their  attention  directed  to  the 
value  and  the  means  of  acquiring  such  knowledge. 
The  Kindergartners  necessarily  come  into  inter- 
course with  the  mothers  of  the  infants  in  their  care, 
and  are  consulted  by  them  concerning  their  home 
treatment.  The  mothers  are  thus  gradually  and 
unconsciously  instructed  in  the  matters  of  which 


Kindergartens  and  Orphanage  Training  409 


they  are  ignorant, — both  those  related  to  child- 
nurture  and  to  home-keeping.  The  teacher  is 
therefore  quite  as  much  a  mother-trainer  as  a 
Kindergartner,  and  bestows  her  benefits  upon  two 
generations  with  an  equal  hand.  No  other  practical 
plan  for  insuring  the  necessary  nurture  of  all  in- 
fants, and  the  instruction  of  all  incompetent  moth- 
ers, has  ever  been  suggested  for  public  adoption. 

The  great  social  importance  of  the  results  ob- 
tainable, the  easy  feasibility  of  securing  them,  and 
the  scientific  basis  of  the  methods  employed  all 
combine  to  authorize  the  incorporation  of  the  Kind- 
ergarten in  the  public-school  system.  "  It  is  a 
part  of  the  system,  as  an  adjunct  to  the  public 
schools,  to  educate  every  woman  in  the  valuable 
matters  relating  to  the  early  training  of  children."  ! 
This  is  the  dictate  of  political  economy,  sociology, 
and  Penology  alike.  We  may  state  it  as  a  positive 
law  of  Penology,  that  the  very  first  duty  of  the 
State,  in  the  protection  of  society  from  crime,  is  to 
insure  the  uniform  and  co-ordinate  development  and 
nurture  of  all  its  children,  in  their  early  infancy. 

The  department  of  public  schools  must  estab- 
lish normal  schools  for  the  special  training  and 
instruction  of  Kindergartners  in  the  theory  and 
practice  of  child-nurture  sufficient  to  supply  the 
demand  for  them.  Without  such  instruction  it 
will  be  impossible  to  secure  the  necessary  qualifica- 
tions, and  the  Kindergarten  is  liable  to  be  only  a 
day  nursery  with  a  tendency  to  dissipate,  rather 

1  Dr.  W.  T.  Harris,  Kindergarten  Principles  and  Practice,  p.  183. 


410  The  Science  of  Penology 


than  inspire,  the  infant  activities.  The  desired  re- 
sults are  possible  only  when  the  nurture  is  con- 
ducted upon  Froebel's  scientific  system,  and  by 
such  means  as  he  found  necessary.  That  is  the 
only  system  known  which  will  certainly  produce 
the  development  desired,  and  knowledge  of  it  is  to 
be  acquired  only  by  special  study  and  practice. 
The  normal  schools  must,  therefore,  have  Kinder- 
gartens connected  with  them,  where  the  students 
can  practise  the  art  under  the  eye  and  advice  of 
skilled  instructors.  Hence  it  is  necessary  that 
they  should  be  located  in  closely  inhabited  com- 
munities, where  children  are  plenty,  and  that  they 
should  be  numerous  rather  than  large.  The  great 
importance  of  a  wise  performance  of  their  duties 
suggests  that  every  graduate  should  be  required  to 
serve  for  a  time  as  an  assistant  before  she  is  per- 
mitted to  assume  the  charge  of  a  Kindergarten. 
As  every  Kindergarten  requires  at  least  two  per- 
sons for  its  efficient  and  safe  management,  a  princi- 
pal and  assistant  will  naturally  constitute  its  corps 
of  Kindergartners. 

The  department  of  public  schools  should,  then, 
make  the  Kindergartens  its  subprimary  classes  and 
establish  them  in  all  their  public-school  buildings, 
so  that  the  school-children  may  take  their  infant  bro- 
thers and  sisters  to  and  from  them.  They  ought  not, 
however,  to  be  exclusively  limited  to  the  public- 
school  buildings,  which  will  often  be  found  unsuited 
or  too  small  for  their  accommodation.  They  should 
be  located  in  the  midst  of  all  closely  populated 


Kindergartens  and  Orphanage  Training  411 

districts,  so  that  they  may  be  easily  and  safely 
accessible  to  all  the  neighboring  infants,  and  that 
these  may  not  feel  themselves  too  far  away  from 
their  mothers  and  homes.  The  cost  of  rooms,  fur- 
niture, apparatus,  Kindergartners,  and  all  the  neces- 
sary expenses  should  be  defrayed  out  of  the  general 
school  funds. 

All  children  below  the  school  age  who  can  walk 
and  talk,  who  are  capable  of  being  managed,  and 
whose  parents  desire  to  send  them,  should  be  ad- 
mitted under  such  regulations  as  may  be  adopted 
for  their  reception  by  the  local  boards  and  the  de- 
partment. The  authorities  should  be  empowered, 
also,  to  compel  the  attendance  of  children  whose 
parents  are  notably  incompetent  or  neglectful,  and 
to  keep  the  unattended  infant  off  the  streets  and 
public  places  during  school  hours. 

The  laws  enforcing  education  are  based  upon  the 
principle  that  no  man  or  woman  has  the  right  to 
rear  up  a  savage  in  a  civilized  community.  This  is 
a  greater  outrage  by  far  than  to  let  loose  a  venom- 
ous reptile,  a  ravening  tiger,  or  a  smallpox  patient 
among  the  people.  These  every  one  recognizes  and 
may  escape.  The  hand  of  every  man  will  be  raised 
to  slay  or  confine  them,  but  the  savage  criminal 
who  grows  up  in  our  midst  works  corruption  and 
ravage  until  society  is  driven  in  desperation  to  con- 
fine him.  There  is  no  public  nuisance  so  offensive 
or  dangerous  as  the  criminal  savage.  Society  has 
no  other  means  of  protection  from  him  than  its 
organized  government.  There  is  no  other  power 


4*2  The  Science  of  Penology 


but  the  State  competent  to  insure  that  universal 
education  which  is  absolutely  essential  to  the  public 
peace  and  prosperity.  There  is  no  other  method 
known  by  which  this  may  be  accomplished  univer- 
sally except  the  Kindergarten  and  the  school. 
Therefore  the  State  is  obliged  to  provide  the  Kind- 
ergarten and  school  for  every  child  whose  parents 
do  not  supply  the  proper  nurture  and  training. 
When  parents  fail,  the  State,  exercising  its  supreme 
parental  functions,  under  the  inspiration  and  guid- 
ance of  the  highest  wisdom  and  science,  must  stand 
godfather  and  godmother  to  all  its  children  from 
birth  to  citizenship,  and  be  held  responsible  for  the 
results. 

The  State  should  have  its  eye  constantly  on 
every  individual  within  its  domain  ;  it  should  be 
omniscient  within  its  sphere  and  to  the  extent  of 
its  power,  and  its  helping  hand  .should  be  ever  ex- 
tended to  every  needy  subject.  As  its  authority  is 
Divine  in  its  origin  and  example,  its  exercise  should 
be  equal,  universal,  Godlike,  in  its  comprehensive- 
ness and  completeness.  The  State  may  not  depend 
upon  the  voluntary  efforts  of  charity  to  discharge 
its  educational  obligations  to  the  poor  and  ignor- 
ant. It  dares  not ;  for  the  inevitable  reaction  of 
suffering  and  ignorance,  under  the  inexorable  laws 
of  God,  will  rend  and  ruin  it  if  it  does.  It  must  of 
necessity,  then,  provide  its  Kindergartens  and 
schools  for  all  children  ;  and  if  this  is  necessary  for 
society  in  general,  there  can  be  no  question,  cer- 
tainly, concerning  its  obligation  to  insure  the 


Kindergartens  and  Orphanage  Training  413 

proper  nurture  and  education  of  those  who  have 
no  other  parental  care. 

The  orphanages  of  the  State,  public  and  private, 
and  all  the  homes  for  abandoned  and  neglected  in- 
fants, must  be  organized  and  conducted  upon  the 
Kindergarten  principle,  and  according  to  Froebel's 
methods,  to  insure  that  even  and  complete  develop- 
ment of  their  inmates  which  is  essential  to  good 
citizenship.  Mere  sustenance  and  shelter,  which 
were  the  original  motives  for  their  institution,  and 
which  have  hitherto  very  largely  satisfied  the 
consciences  of  their  supporters,  no  longer  an- 
swer the  demands  of  our  advanced  civilization. 
Experience,  which  finds  so  many  of  their  bene- 
ficiaries graduating  into  reformatories  and  pris- 
ons after  an  ungrateful  career  of  criminal  hostility, 
declares  imperatively  that  infant-nurture  includes 
much  more  than  food  and  comfort ;  that  whole- 
some development  is  more  important  even  than 
the  preservation  of  a  useless  or  evil  life.  Our 
Christian  charity  and  faith  accept  the  belief  that 
death  in  sinless  infancy  is  preferable  for  the  indi- 
vidual soul  to  death  deferred  to  the  close  of  a  life  pro- 
longed for  vice  and  crime.  It  would  be  better  to  let 
the  uncared-for  infant  die  than  grow  up  a  criminal. 

It  devolves  upon  the  State  to  provide  well-trained 
Kindergartners  in  all  those  institutions  where  in- 
fants below  the  school  age  are  cared  for ;  to  supply 
the  full  maternal  nurture  which  they  need  to  pre- 
vent their  growing  up  like  savages  ;  and  to  stimul- 
ate into  action  the  mental  and  moral  functions  in 


4H  The  Science  of  Penology 


harmony  and  correspondence  with  their  physical 
growth.  All  such  charitable  institutions  should  be 
subject  to  the  constant  inspection  and  supervision 
of  the  department  of  education  as  well  as  of  chari- 
ties. The  Kindergartners  should  be  supplied,  con- 
trolled, and  paid  by  the  department  of  public 
education,  which  must  be  made  responsible  for  the 
proper  preparation  of  the  children  for  the  schools. 

Such  an  assumption  by  the  State  of  its  inherent 
prerogative  to  supply  society  what  is  necessary  for 
its  own  welfare,  and  to  make  good  by  public  admin- 
istration the  deficiencies  of  its  individual  constitu- 
ents, is  the  only  adequate  remedy  for  the  evils 
caused  by  arrested  or  perverted  infantile  develop- 
ment. It  will  very  largely  correct  the  pernicious 
influences  of  a  corrupting  environment,  and  apply 
the  most  efficacious  cure  to  bad  heredity.  Until 
the  State  insures  to  all  its  infants  the  maternal  nurt- 
ure which  they  require  for  full  development,  and 
to  all  its  children  a  wisely  rounded  education  up  to 
their  sixteenth  year  of  age,  its  contest  with  crimin- 
ality will  not  cease  to  be  its  heaviest  burden,  and 
its  most  shameful  and  inexcusable  failure. 

But  there  is  a  higher  motive  than  the  economical, 
which  imposes  upon  the  State  the  duty  of  protect- 
ing its  children  during  infancy  from  the  permanent 
injury  which  so  certainly  follows  when  they  are  al- 
lowed to  mature  without  the  development  essential 
to  normal  character.  Society  has  moral  and  re- 
ligious as  well  as  material  and  economical  responsi- 
bilities. It  cannot  ignore  these  duties  with  impunity. 


Kindergartens  and  Orphanage  Training  415 


The  natural  reaction  of  social  sin  or  crime  is  as  re- 
lentless and  sure  as  of  personal  transgression.  If 
the  State  fails  to  supply  the  default  of  the  natural 
parent  in  the  nurture  of  a  single  child  within  its 
borders,  it  not  only  suffers  the  immediate  injury  in- 
flicted by  an  inimical  citizen,  but,  having  become 
accountable  for  the  most  grievous  injury  which  can 
be  inflicted  upon  a  human  being,  it  falls  also  under 
the  terrible  condemnation  which  Christ  pronounced 
in  Luke  xvii.,  i,  2  :  "It  is  impossible  but  that  of- 
fenses will  come  ;  but  woe  unto  him  through  whom 
they  come  !  It  were  better  for  him  that  a  millstone 
were  hanged  about  his  neck,  and  he  cast  into  the  sea, 
than  that  he  should  offend  one  of  these  little  ones." 
The  meaning  of  "offend"  is  to  injure,  to  cause 
to  sin  or  neglect  duty.  Certainly  no  greater  injury 
can  be  perpetrated  upon  any  helpless  little  one  than 
to  allow  it  to  mature,  without  morality,  into  a  life  of 
evil,  crime,  and  sin,  the  inevitable  end  of  which  is 
eternal  death.  The  State  which  permits  this  is 
doomed,  by  the  laws  of  God  and  man,  to  disease 
and  death. 


CHAPTER  XX. 

PENOLOGICAL     ETHICS    IN     THE    ADMINISTRATION    OF 

LAW. 

Maintenance  of  Law  the  Special  Duty  of  Lawyers — Economic  Interest  of 
this  Duty  to  them — Criminal  Law  the  Foundation  of  all  Laws — The 
Criminal  Lawyer — Perversion  of  Legal  Talent  to  the  Escape  of  the 
Guilty — Honor  of  Defense — Duties  of  Judges — Ethical  Laws  of  Trial 
— Illegal  Verdicts  by  Juries — Patriotic  Duty  of  Good  Citizenship — The 
Public  Prosecutor — The  Advocate  of  the  Defense — Mills'  Rules  of 
Ethics — Certainty  and  Celerity  of  Punishment  equally  Essential. 

THIS  treatise  requires  for  its  completion  some 
observations  concerning  the  prevalent  faults 
of  the  practice  of  criminal  law  in  the  United  States. 
Under  existing  conditions  there  is  no  single  cor- 
rective expedient  or  remedial  measure  which  would 
be  more  efficacious  in  the  repression  of  crime,  the 
restriction  of  vice  and  criminality,  and  the  protec- 
tion of  society  than  a  general  conscientious  recog- 
nition and  rigid  observance  of  the  supreme  ethical 
responsibilities  of  their  profession  by  judges  and 
lawyers  in  the  trial  of  persons  accused  of  crime. 
The  legal  profession  is  exclusively  devoted  to  the 
study,  practice,  and  execution  of  the  law.  Its 
business  is  to  know  and  secure  the  greatest  efficiency 
of  the  laws  for  the  public  good  and  the  protection 
and  advantage  of  its  clients.  Society  depends  upon 

416 


Penological  Ethics 


it  to  expound  and  correctly  apply  the  provisions  of 
its  enacted  statutes  and  established  principles  for 
the  common  welfare  and  individual  safety.  Its 
emoluments  are  derived  from  that  great  store  of 
safeguards  which  social  experience  has  accumulated 
for  the  community  and  the  individual.  The  pro- 
fession is  itself  the  natural  product  and  offspring  of 
the  laws.  The  laws  are  not  only  the  means  of  its 
maintenance,  the  very  implements  of  its  occupation, 
but  the  cause  of  its  existence.  Upon  the  majesty, 
supremacy,  and  inviolability  of  law  its  usefulness, 
its  earnings,  its  very  life  depend.  The  sovereignty 
and  stability  of  law  are  both  the  plant  and  working 
capital  of  the  legal  profession  ;  in  proportion  as 
these  are  preserved  or  impaired  must  the  value  of 
legal  services  vary.  The  observance  and  execution 
of  law,  reverence  for  law,  are  both  the  fundamental 
theory  and  necessarily  the  prime  object  of  the  pro- 
fession. The  perversion  of  its  practice  and  powers 
to  hinder  or  prevent  society  from  obtaining  the 
largest  benefits  from  its  laws  stultifies  the  lawyer, 
betrays  and  degrades  his  profession,  and  is  treason 
to  civilization  and  humanity.  No  man  of  good 
judgment  and  ordinary  business  prudence  would 
consider  an  immediate  profit  worth  gaining  at  the 
expense  of  his  capital. 

The  misuse  and  malversation  of  practices,  prece- 
dents, and  technicalities  adopted  for  and  adapted 
to  the  protection  of  the  innocent,  to  facilitate  the 
escape  of  criminals  from  the  penalties  of  the  law, 
to  defeat  the  aim  and  purpose  of  laws  and  render 


4i  8  The  Science  of  Penology 

them  impotent,  for  a  fee,  is  to  devour  principal 
and  principles  instead  of  to  enjoy  legitimate 
income.  There  is  no  law  of  social  economics  or  of 
nature  more  inflexible  or  certain  than  that  profit 
or  income  is  the  specific  yield  or  fruit  of  capital. 
Whether  the  capital  or  principal  be  money,  muscle, 
brains,  or  law,  the  income  derived  from  its  use  must 
grow  or  decrease  in  strict  proportion  to  the  social 
value  of  the  principal.  The  capitalist  who  spends 
his  principal,  he  who  exhausts  his  mental  or  physi- 
cal resources,  the  lawyer  who  destroys  the  utility  of 
laws,  all  alike  impoverish  the  sources  of  their  future 
profit,  and  invite  eventual  ruin.  Individuals  may 
tamper,  as  many  do,  with  the  grand  principles  of 
the  laws  ;  their  impressive  superstructure  has  with- 
stood and  will  long  withstand  unshaken  even  the 
insidious  burrowings  of  many  at  its  foundations, 
but  the  final  collapse  of  the  "  reign  of  law"  is  inevit- 
able when  its  natural  supports  are  undermined. 
In  its  ruin,  lawyers,  the  government,  and  society 
must  perish  together.  Self-interest  and  loyalty  to 
his  profession,  as  well  as  the  safety  of  society,  re- 
quire the  lawyer  to  make  his  allegiance  to  the 
supremacy  of  the  law  the  self-evident,  indubitable 
motive  of  all  his  practice.  No  lawyer  can  claim  the 
confidence  of  the  public  whose  loyalty  to  the  sov- 
ereign law  is  exposed  to  suspicion.  As  his  practi- 
cal success  or  profitable  practice  depend  upon 
public  confidence  in  him  as  a  lawyer,  he  cannot 
afford  to  cast  the  slightest  shadow  upon  this  loyalty. 
It  is  an  old  professional  adage  "  that  the  lawyer  is 


Penological  Ethics  419 


on  trial  as  well  as  his  client."  Both  public  and 
private  interest  demand  an  unfaltering,  undeviating 
support  of  the  majesty  of  law  from  all  who  make  a 
business  and  livelihood  in  its  practice. 

The  laws  are  the  regulations  which  mankind 
associated  in  communities  have  by  common  consent 
enacted  for  the  preservation  and  promotion  of  the 
common  welfare  and  the  protection  of  personal 
and  property  rights.  They  institute  and  conserve 
the  social  organization  ;  they  constitute  the  State ; 
they  stimulate  and  guard  the  individual  in  his  avo- 
cations and  life  ;  they  make  human  progress  and 
civilization  possible  ;  property,  person,  and  life  se- 
cure, in  the  selfish  struggles  of  competitive  existence. 
Without  law,  anarchy,  robbery,  ravage,  ravishing, 
and  extinction  result.  The  beginning  of  the  gov- 
ernment of  law  was  the  criminal  code,  for  the  re- 
pression of  crime  and  the  defense  of  society  from 
criminals.  Criminal  law  is  the  foundation  of  the 
whole  edifice  of  human  laws ;  its  integrity  and 
efficiency  the  most  essential  to  the  common  welfare 
of  them  all.  It  should,  naturally  and  logically  as 
the  plant  and  germ,  the  essence  and  supreme  prin- 
ciple, the  cardinal  function  of  them,  hold  the  posi- 
tion of  honor  and  highest  respect  among  laws  ;  its 
practice  should  be  the  most  reputable  branch  of  the 
legal  profession,  instead  of  the  least  honorable. 

"  From  ancient  Roman  times  until  recent  years,  the  advo- 
cate in  criminal  cases  held  a  conspicuous  place  of  honor  and 
recognition  among  men.  The  history  of  civilized  nations  has 
been  glorified  by  his  devotion,  his  bravery,  his  matchless 


420  The  Science  of  Penology 


speech;  he  has  stood  for  the  oppressed,  has  defied  tyranny, 
has  been  a  shield  against  cruel  power  ;  has  been  a  pioneer  in 
the  advance  of  human  rights.  He  has  been  the  incarnation 
of  the  finest  spirit  of  the  legal  profession." ' 

But  the  greatest  and  best  lawyers  have  to  a 
large  extent  become  inclined  to  refuse  retainers  in 
criminal  cases,  except  their  repugnance  is  overcome 
by  extraordinary  fees,  or  some  peculiar  and  ex- 
ceptional appeal  is  made  to  their  duty,  while  pro- 
fessional criminal  lawyers  are  popularly  and  pro- 
fessionally held  in  small  esteem.  They  are  growing 
to  be  a  distinct  class  devoted  to  the  defense  of 
criminals,  sharing,  sometimes,  in  their  spoils,  in 
close  alliance  with  them,  relied  upon  by  the  crimi- 
nal class  to  extricate  its  members  from  the  meshes 
of  the  law  when  arrested,  and  often  to  plan  their 
depredations  so  as  to  provide  for  a  successful  de- 
fense. Criminal  lawyers  often  become  actual  mem- 
bers themselves  of  the  criminal  class,  and  its  most 
dangerous  and  pestiferous  element.  They  devote 
themselves  to  the  perversion  and  nullification  of 
the  laws  and  the  protection  of  its  violators.  Their 
business  is  opposition  to  law  ;  their  success  and 
profits  are  derived  from  the  escape  of  the  guilty, 
contrary  to  law.  Their  object  and  effort  in  the 
trial  of  cases  is  to  conceal,  and  not  disclose,  the 
facts ;  to  warp  established  legal  procedure  and 
principles  from  the  protection  of  innocence  to  the 
obscuration  of  guilt ;  to  cloud  testimony  with 

1  Address,    Thoughts  on  Criminal  Law,  by  Hon.   Luther  Laflin   Mills, 
before  the  John  Marshall  Law  School,  Chicago,  April,  1901. 


Penological  Ethics  421 


doubt ;  to  pervert  the  presentation  of  evidence  ;  to 
discredit  and  even  to  suborn  witnesses ;  to  secure 
delays  until  witnesses  can  be  bribed  or  spirited 
away,  and  re-trials  obtained  by  the  disagreement 
of  juries,  the  discrediting  the  ruling  of  judges,  or 
by  appeals  to  higher  courts.  They  manipulate  the 
list  of  jurors  to  secure  complaisant  or  corruptible 
jurymen.  This  practice  has  become  so  common 
and  successful,  verdicts  palpably  contrary  to  the 
law  and  facts  have  become  so  frequent  and  start- 
ling, that  public  confidence  in  this  great  safeguard 
of  human  liberty  is  being  seriously  undermined. 
Such  practices  attack  both  the  government  of  law 
and  the  most  sacred  bulwark  of  human  liberties. 
They  have  made  criminal-law  practice  so  unpopular 
that  it  is  largely  consigned  to  such  lawyers  as  find 
it  congenial  to  their  own  disposition,  and  associa- 
tion with  criminals  tolerable  ;  to  men  who  are  sus- 
ceptible to  the  corrupting  and  degrading  associa- 
tions of  the  lower  social  strata,  and  who  are 
necessarily  drawn  down  constantly  to  lower  stand- 
ards of  morality.  They  have  not  only  robbed  the 
criminal  lawyer  of  his  legitimate,  highest  rank,  but 
are  gradually  sinking  him  into  the  lowest  order  of 
his  profession.  They  are,  therefore,  essentially 
vicious,  hostile  to  the  public  welfare,  professionally 
suicidal,  and  of  the  gravest  criminality.  They 
should  be  carefully  restrained  by  the  sternest 
powers  of  the  courts. 

The  defense  of  notorious  or  atrocious  criminals 
by  lawyers  of  great  ability  and  reputation,  who  are 


422  The  Science  of  Penology 


induced  to  undertake  the  defense  for  the  sake  of 
large  fees  or  the  hope  of  distinction,  is  another 
species  of  legal  malpractice  quite  as  pernicious  and 
destructive  of  the  majesty  of  the  law  as  the  corrupt 
practices  of  criminal  lawyers.  If  the  criminal  se- 
cures sufficient  booty,  or  his  relations  are  wealthy 
enough  to  employ  the  highest  legal  defenders,  his 
escape  from  full  punishment  is  almost  certain.  The 
successes  of  illustrious  lawyers  in  preventing  the 
execution  of  the  law  have  encouraged  the  growth 
of  a  popular  opinion  and  a  belief  among  criminals 
that  money  is  more  potent  than  justice,  even  in  the 
courts ;  that  its  power  extends  beyond  the  low 
sphere  of  bribery  and  corruption  into  the  loftiest 
range  of  human  influences.  Such  a  conviction 
stimulates  the  commission  of  crimes,  and  nullifies 
the  main  utility  of  penal  statutes  by  destroying  the 
fundamental  principle  of  the  certainty  of  punish- 
ment for  crime.  The  responsibility  of  a  lawyer  to 
society  and  his  profession  is  in  strict  proportion  to 
his  talents  and  character ;  the  greater  these  are,  the 
more  dangerous  and  injurious  their  misuse  and 
prostitution  in  perverting  the  protection  of  the  law 
from  society  to  the  criminal.  The  defense  of 
a  criminal  by  lawyers  of  exalted  character  not 
only  lends  a  glamour  of  respectability  to  him  and  a 
color  of  reliability  to  his  defense,  but  brings  to  bear 
on  the  jury  influences  intended  and  likely  to  secure 
a  verdict  from  sentiment  and  emotion,  rather  than 
one  resulting  from  reason,  evidence,  and  law.  No 
fee  or  reward  or  imaginary  gain  in  reputation  can 


Penological  Ethics  423 


be  a  warrant  or  adequate  compensation  for  such  a 
profanation  of  genius,  ability,  and  talent  before  the 
altar  of  Justice.  The  sovereignty  and  majesty  of 
law  are,  indeed,  maintained  as  impressively  by  sur- 
rounding the  accused  with  every  legal  protection 
which  the  experience  of  the  profession  has  devised 
under  the  direction  of  the  highest  talent,  but  this 
protection  must  never  exceed  the  exact  limits  of 
the  law  ;  nor,  in  the  ardor  of  its  exercise,  or  under 
the  inspiration  of  the  circumstances,  should  it  at- 
tempt to  defeat  the  supreme  object  of  law.  There 
is  no  nobler  or  more  satisfactory  triumph  for  the 
great  lawyer  than  the  rescue  of  the  innocent  from 
unmerited  punishment,  the  saving  of  property,  per- 
son, and  sometimes  life  from  an  illegal  condemna- 
tion. To  compel  the  State  to  prove  beyond  a 
reasonable  doubt  the  guilt  of  the  accused  before  it 
shall  inflict  the  sentence  of  the  law  is  a  motive  and 
responsibility  which  the  sovereignty  of  law,  as  well 
as  duty  and  the  fate  of  his  client,  devolve  upon  the 
advocate  of  the  accused.  The  satisfaction  and 
honor  which  may  follow  a  successful  defense  con- 
ducted in  accord  with  the  established  methods  of 
procedure  are  as  great  and  beneficial  to  society  as 
can  be  derived  from  the  conviction  of  the  guilty ; 
for  the  government  of  law  must  guard  the  individ- 
ual against  the  tyranny  of  society  as  fully  as  it  pro- 
tects society  from  the  attack  of  the  individual.  The 
claims  of  one  upon  it  are  only  supreme  until  they 
conflict  with  the  welfare  of  all.  The  majesty  of 
law  is  maintained  as  impressively  in  the  legitimate 


424  The  Science  of  Penology 


shielding  of  the  accused,  and  in  compelling  a 
conviction  to  be  made  in  strict  conformity  to 
law,  as  by  the  execution  of  its  penalties  upon  the 
criminal. 

These  are  the  general  principles  which  the  ex- 
perience of  the  past  in  the  administration  of  criminal 
law  has  established  as  necessarily  governing  its 
ethical  practice.  It  is  within  the  province  and 
power  of  the  courts  to  enforce  their  observance. 
The  social  welfare,  therefore,  requires  from  courts 
and  judges,  first  and  above  all  else,  the  strictest, 
most  zealous,  and  conscientious  enforcement  of 
conformity  to  law  in  trials.  The  execution  of  law 
must  be  not  only  certain  and  quick,  but  above 
suspicion,  even,  of  illegality  or  injustice.  It  is  im- 
possible to  maintain  government  by  law  contrary 
to  law,  to  compel  obedience  to  law  by  violations 
of  law.  The  judge  must  hold  the  scales  of  justice 
with  a  firm  and  absolutely  unwavering  hand,  with 
the  keenest  scrutiny  that  no  illegal  or  false  weight 
fall  into  either  side.  Evidence  must  be  procured, 
introduced,  or  excluded  according  to  law  ;  processes 
and  procedure  warranted  by  law,  and  designed 
solely  to  disclose  all  the  facts  pertinent  to  the  dis- 
covery of  the  guilt  or  innocence  of  the  accused.  It 
is  the  supreme  duty  of  the  judge  to  confine  the  trial 
strictly  to  the  disclosure  of  the  facts  of  the  case,  to 
state  the  laws  of  it,  and  to  assure  both  the  public  and 
the  prisoner  a  decision  according  to  the  facts  and 
the  law  by  a  rational,  honest,  and  sober  jury  of  the 
prisoner's  peers,  uninfluenced  by  passion,  prejudice, 


Penological  Ethics  425 


or  corruption.  The  legal  practitioner  who  trans- 
gresses these  well-defined  lines  of  prosecution  and 
defense  wilfully  and  persistently,  or  who  attempts  by 
fraud,  perjury,  or  corruption  to  win  his  case,  whether 
by  false  witnesses,  or  jury  "  fixing,"  or  influencing  it 
otherwise  than  by  the  facts  and  the  law,  should  be 
relentlessly  disbarred  from  the  courts  of  justice. 
The  penalty  for  such  gross  malpractice  should  be 
so  quick,  disgraceful,  and  severe  as  to  interpose 
the  strongest  restraint  upon  the  whole  profession 
against  the  temptation  to  win  victory  at  the  ex- 
pense of  fidelity  and  honor. 

The  defense  of  society  against  crime  enunciates 
these  ethical  laws,  especially,  as  inexorably  regnant 
in  the  trial  of  criminals,  among  those  definitely  en- 
acted or  established  by  courts  : 

1 .  That  it  is  the  main  object  of  the  trial  to  en- 
force obedience  to  law. 

2.  That  it  is  the  exclusive  purpose  of  the  trial  to 
determine  the  measure  of  the  guilt  or  the  innocence 
of  the  accused  by  the  full  disclosure  of  all  the  facts 
and  law  pertinent  to  the  case. 

3.  That  it  is  the  supreme  duty  of  the  judge  to 
compel  rigid  conformity  to  law  in  every  process  of 
the  trial ;  in  the  selection  of  a  trustworthy  jury, 
in  the  introduction  of  evidence,  the  examination  of 
witnesses,  and  all  the  conduct  of  the  trial,  both  by 
the  prosecuting  attorney  and  the  advocate  for  the 
defense.      He  must  extend  the  aegis  of  the  law  with 
equal  firmness  over  society,  which  has  been  wronged ; 
the  defendant,  who  is  accused ;  the  jury,  by  whom 


426  The  Science  of  Penology 


the  fate  of  the  prisoner  must  be  decided ;  the  wit- 
nesses who  are  called  to  testify,  and  the  lawyers 
engaged  in  prosecution  and  defense.  It  devolves 
upon  him  to  protect  jurors  from  corruption,  bias, 
prejudice,  improper  evidence,  undue  influences, 
insult,  and  revenge  ;  witnesses  from  impertinent 
questioning,  confusing  examination,  ungentlemanly 
insinuations,  badgering,  and  unnecessary  self-dis- 
credit of  their  own  testimony  ;  the  accused  from 
illegal  evidence  and  perjured  testimony ;  and  to 
impose  upon  him  a  sentence  which  shall  seem  best 
designed  to  permanently  transform  him  from  a 
transgressor  into  a  willing  subject  of  law. 

As  the  laws  are  held  to  be  the  enacted  common 
sense  of  justice,  right,  truth,  and  honesty ;  and  the 
purpose  of  trials  is  to  dispense  justice,  protect  right, 
discern  and  establish  truth,  and  vindicate  honesty, 
it  is  essential  to  the  supremacy  and  public  confid- 
ence in  the  utility  of  laws  that  trials  of  criminals 
shall  be  conducted  with  scrupulous  respect  to  these 
cardinal  principles,  whether  the  enacted  statute  or 
the  recognized  precedent  has  made  provision  for  an 
unusual  dilemma,  or  exigency,  or  not.  The  right 
of  a  prisoner  to  a  speedy  trial,  and  the  equal  right 
of  society  to  a  quick,  fair,  and  honest  decision  con- 
cerning his  guilt  or  innocence  also,  constitute 
frivolous  objections  and  exceptions,  technical  con- 
ventions, finical  observance  of  overelaborated  rules 
of  evidence,  the  introduction  of  unnecessary  testi- 
mony to  prove  what  is  known  to  be  true,  or  has 
been  already  proved,  unlimited  discussion  by  counsel, 


Penological  Ethics  427 


endless  disputation  of  side  issues,  the  almost  un- 
unlimited  liberty  of  appeal,  motions  for  delays, 
postponement,  and  new  trials,  actual  violations  of 
these  essential  principles  of  law  and  obstructions 
to  its  execution  which  it  is  the  duty  of  the  judges 
to  prevent.  Therefore  ; 

4.  Judges  should  control  the  conduct  of  trials  by 
all  the  court  officials  in  accord  with  the  established 
principles  of  justice,  right,  truth,  and  honesty. 

It  is  not  an  uncommon  occurrence  for  juries  to 
bring  in  a  verdict  which  is  manifestly  unsupported 
by  evidence,  or  palpably  contrary  to  the  evidence, 
the  law,  and  the  common-sense  principles  of  just- 
ice, right,  truth,  and  honesty.  Within  a  few  days 
the  newspapers  have  reported  the  acquittal  by  a 
jury  of  a  man  violating  a  Sunday  law  by  playing 
golf  on  club  links  in  the  State  of  New  York,  al- 
though instructed  by  the  Court  that  the  act,  which 
was  proved  and  not  denied,  was  a  violation  of  the 
law ;  that  another  jury  in  the  same  State  had 
brought  in  a  verdict  that  they  had  "  agreed  to  disa- 
gree," for  which  they  were  properly  fined  by  the 
Court ;  the  finding  a  verdict  of  "  not  guilty  "  (with 
half  of  the  costs  laid  on  the  prosecutor,  the  agent  of 
a  citizens'  league),  in  favor  of  a  man  proved  guilty  by 
three  credible  witnesses  of  selling  liquor  on  Sunday, 
no  defense  having  been  made,  in  a  Pennsylvania 
court ;  and  that  the  judge  discharged  the  jury  with- 
out even  a  rebuke.  This  is  a  shocking  travesty  of 
justice,  which  strikes  at  the  sanctity  and  value  of 
the  system  of  jury  trials.  It  is  a  violation  of  the 


428  The  Science  of  Penology 


juror's  oath  administered  by  the  Court,  in  the  very 
face  and  presence  of  the  Court ;  a  contempt  of 
Court ;  a  shameless  effrontery  of  heinous  criminal 
perjury  which  should  never  be  permitted  to  escape 
swift  and  condign  punishment.  If  such  a  contu- 
macious and  criminal  jury,  however  unimportant 
the  case  concerning  which  they  have  perjured 
themselves,  should  be  bodily  conducted  from  the 
jury  box  to  the  reformatory,  under  an  indetermin- 
ate sentence,  occasionally,  it  would  contribute 
greatly  to  the  public  respect  for  law.  The  author- 
ity conferred  on  the  jury  to  judge  the  evidence 
confers  no  power  to  judge  the  law,  or  decide 
whether  it  is  good  or  bad.  The  making  and  re- 
peal of  law  is  the  province  of  another  branch  of 
government.  The  juror  is  sworn  to  decide  upon 
the  evidence  as  it  is  presented,  according  to  the 
law  as  it  has  been  enacted.  A  verdict  contrary  to 
the  law  or  the  evidence,  or  unsupported  by  evi- 
dence, is  without  warrant,  and  absolutely  void.  It 
is  impossible  that  a  verdict  should  be  just  or  right 
which  violates  the  oath  of  the  juror ;  to  execute 
and  sustain  law  by  breaking  the  law.  Justice  and 
the  social  welfare  require,  therefore  : 

5.  That  judges  shall  compel  juries  to  have  respect 
to  their  oaths  of  office,  and  to  conform  strictly  to  the 
principles  and  statutes  of  law  in  their  verdicts,  as 
well  as  in  their  constitution  and  conduct.  It  is  his 
duty  to  effect  this  by  the  summary  infliction  of  se- 
vere exemplary  punishment  for  palpable  violations 
of  these  principles.  The  guardian  of  the  laws  must 


Penological  Ethics  429 


certainly  enforce  obedience  to  them  in  his  own 
presence,  and  during  the  very  administration  of 
them. 

In  order  to  prevent  the  discrediting,  weakening, 
and  final  abandonment  of  this  safeguard  of  per- 
sonal liberty,  good  citizens  should  be  willing  to 
make  great  personal  sacrifices  of  time  and  conven- 
ience when  drawn  to  discharge  this  important  func- 
tion of  citizenship.  It  is  one  of  the  principal 
requirements  of  patriotism,  not  to  be  ignored  or 
refused  except  for  the  gravest  reasons.  The  dam- 
age done  to  society  and  to  the  government  of  law  by 
compelling  this  duty  to  be  performed  by  the  less 
qualified  far  outweighs  any  ordinary  personal  sac- 
rifice of  the  busiest  of  men.  It  is  a  principle  of 
penological  ethics  as  well  as  of  government  by  law  : 

6.  That  the   duty  of  good  citizens  to  serve  the 
State  on  juries  cannot  be  avoided  with  impunity  ; 
and 

7.  That  judges  shall  exact  this  service  of  all  who 
are  legally  drawn  except  when  the  gravest  reasons 
afford  a  sufficient  excuse. 

The  public  prosecutor  is  the  legal  representative 
of  society  in  the  trial  of  persons  accused  of  crime. 
His  position  is  one  of  grave  responsibility  and  nota- 
ble dignity.  He  personifies  the  people  and  the 
power  of  the  laws  before  the  court.  He  is  not 
only  required  to  maintain  the  supremacy  and  in- 
sure the  efficiency  of  the  laws,  by  legally  proving 
the  guilt  of  every  criminal  beyond  a  reasonable 
doubt,  if  it  is  possible,  and  procuring  his  conviction 


43°  The  Science  of  Penology 


and  sentence,  but  he  must  do  this  quickly,  in  order 
to  secure  the  full  utility  of  the  laws,  which  depends 
quite  as  much  on  the  celerity  as  the  certainty  of  their 
execution ;  "  justice  delayed  is  justice  denied." 
There  is  not  only  no  authority  for  the  prolonged 
imprisonment  of  an  accused  person,  whom  the 
laws  presume  to  be  innocent  until  he  is  proved 
to  be  guilty,  but  the  Constitution  specially  guaran- 
tees a  speedy  trial  to  every  one  arrested.  Un- 
necessary delay  of  trial  is  both  a  violation  of 
this  constitutional  right,  and  a  wrong  to  society 
sometimes  greater  than  the  alleged  crime,  by  the 
imposition  of  an  extravagant  expense  upon  it  for 
the  maintenance  of  the  prisoner  under  guard  while 
awaiting  trial.  It  is,  therefore, 

8.  The  first  duty  of  the  public  prosecutor  to  obtain 
a  speedy  trial  of  every  one  accused  of  crime, 

Experience  has  very  fully  defined  by  law  and 
precedent  the  extent  and  limitations  of  the  rights 
and  powers  of  the  prosecutor  in  the  procedure  of 
trials,  but  the  regulations  for  defendants  are  natural- 
ly very  difficult  and  less  rigid.  The  ethical  princi- 
ples which  should  govern  lawyers  engaged  in  the 
defense  of  accused  persons  have  been  formulated  as 
rules  by  a  distinguished  lawyer  of  Illinois  in  an 
address  before  the  John  Marshall  Law  School  of 
Chicago  as  follows  : 

"  i.  If  you  once  undertake  the  defense  of  a  man,  whether  or 
not  he  can  compensate  you  with  money,  stand  by  him  to  the 
last,  no  matter  what  the  prejudice  or  opposition  may  be  against 
him.  His  lawyer's  fidelity  must  be  persistent  and  unchange- 


Penological  Ethics  431 


able.  Yet  that  fidelity  does  not  signify,  nor  imply,  that  the 
advocate  should  ever  suppress  his  individual  conscience,  sac- 
rifice his  own  manhood,  or  violate  any  law  of  good  morals. 
And  so  it  may  be  said  : 

"  2.  That  it  is  a  lawyer's  duty  to  maintain  persistently  the 
legal  presumption  of  his  client's  innocence  and  insist  on  the 
State's  proving  the  truth  of  its  position  beyond  all  reasonable 
doubt.  This  is  the  law,  as  it  is  the  right,  of  every  case. 

"3.  Present  every  truthful  fact  which  will  tend  to  maintain 
the  presumption  of  innocence,  and  every  proposition  of  law, 
fairly  and  frankly,  which  may  tend  to  hold  the  State  rigidly  to 
the  obligation  imposed  upon  it,  to  establish  the  guilt  of  the 
defendant  beyond  reasonable  doubt. 

"  4.  Never  knowingly  allow  a  false  witness  to  testify  in 
behalf  of  your  client.  No  righteous  demand  of  fidelity  requires 
such  conduct  on  the  lawyer's  part. 

"  5.  '  To  thine  own  self  be  true  ;  thou  canst  not  then  be  false 
to  any  man.' 

"  6.  In  the  face  of  damaging  testimony  plead  every  miti- 
gation and  extenuation  which  appear  from  the  evidence.  For 
there  is  a  certain  equity  recognized  and  approved,  as  supple- 
mental to  the  law,  in  the  practice  of  even  its  criminal  branch. 
Thus,  a  poor  man  steals  bread  for  his  starving  wife  and  child- 
dren.  Judged  by  the  letter  of  the  law  he  is  guilty  of  larceny, 
but  its  spirit  as  related  to  this  particular  case  justifies  his 
escape  from  punishment,  and  his  advocate's  urging  upon  the 
trial  jury  the  justifying  circumstances  of  the  offense.  *  *  * 

"  8.  Do  not  think  that  every  defendant  should  go  to  trial. 
In  case  of  legal  guilt,  in  which  the  State,  in  your  judgment, 
can  conclusively  remove  the  presumption  of  the  innocence  of 
your  client  and  establish  his  guilt  beyond  a  reasonable  doubt, 
it  is  wise  policy,  in  most  cases,  to  allow  him  to  plead  guilty  and 
then  to  urge  his  equities  and  extenuations  upon  the  Court  who 
is  to  impose  the  sentence."  ' 

Negligence  in  the  observance  of  the  abovemen- 

1  Thoughts  on  Criminal  Law,  by  Hon.  Luther  Laflin  Mills.  Address  to 
the  John  Marshall  Law  School,  Chicago,  April,  1901. 


432  The  Science  of  Penology 


tioned  principles  has  contributed  largely  to  the 
failure  of  our  existing  criminal  codes  to  restrict 
crime.  The  codes  have  inherent  defects  which  in 
themselves  conflict  with  the  fulfilment  of  their  pur- 
pose, but  the  grave  faults  which  have,  by  degrees, 
crept  into  the  manner  of  their  execution  deprive 
them  of  much  of  their  possible  utility.  Whatever 
protection  against  crime  society  might  expect  or 
derive  from  the  punishment  of  it  by  law  depends 
upon  the  inevitable  certainty  of  the  prescribed 
penalty  as  a  consequence  of  crime.  The  final  re- 
action of  violated  human  law  must  be  as  sure  as  the 
recognized  consequence  of  the  violation  of  a  law  of 
nature,  or  of  God.  By  as  much  as  the  hope  of 
escape  is  encouraged,  the  fear  of  the  law  vanishes, 
and  its  potency  diminishes.  So,  also,  the  farther  in 
time  the  punishment  is  removed  from  the  trans- 
gression, the  more  attenuated  and  indistinct  does  the 
natural  connection  between  cause  and  effect  become. 
The  punishment  which  is  delayed  loses  its  terrors  in 
its  perspective. 

Certainty  and  celerity  are  the  two  great  sources  of 
the  power  of  punishment  to  prevent  crime,  which  has 
been  shown  to  be  its  chief  legal  function. 

It  should  therefore  be  the  controlling  motive 
and  constant  effort  of  every  public  official  and 
patriotic  participant  in  the  trials  of  criminals  to 
make  these,  next  after  justice,  the  predominant  and 
impressive  features  in  the  administration  of  criminal 
law.  The  consummate  product  of  human  experi- 
ence and  wisdom  for  social  protection,  the  majestic 


Penological  Ethics  433 


instrument  of  social  justice,  the  machinery  of  the 
laws,  must  not  be  permitted  to  become  so  complicated 
by  overrefinement  of  technicalities  as  to  consume 
its  power  and  speed  in  useless  friction  of  operation. 
Society  requires  its  lawyers,  who  are  its  legal  en- 
gineers, just  as  railroad  managers  require  their 
locomotive  engineers,  not  only  to  bring  their  charges 
in  safety  to  their  destination,  but  to  bring  them  there 
at  the  proper  time,  in  order  that  the  business  of  life 
may  proceed  prosperously  without  disorganization. 
The  attention  of  the  legal  profession  should  be  con- 
centrated on  facilitating  the  operation  of  law,  and 
upon  the  removal,  and  not  the  devising,  of  obstruc- 
tions to  its  execution. 


CHAPTER    XXI. 

A    COMPENDIUM    OF    THE     PRINCIPLES    OF    SCIENTIFIC 
PENOLOGY. 

WE  shall  now  recapitulate  the  several  principles 
or  laws  which  have  been  formulated  in  the 
preceding  chapters  of  this  book,  as  recognized  and 
accepted  by  intelligent  penologists  to  be  axiomatic 
and  indisputable.  We  do  this  for  convenience 
of  reference  and  citation,  as  well  as  to  mark  out 
concisely  the  individual  and  particular  elements  of 
the  science,  which  constitute  it  an  entire  system. 
The  future  experiments  and  discoveries  of  those 
who  devote  themselves  to  the  investigation  of  the 
causes  and  cure  of  the  social  disease  of  criminality 
may  modify  or  extend  our  knowledge  of  these  prin- 
ciples, and  develop  the  science  in  special  directions  ; 
but  we  believe  that  mankind  has  reached,  already, 
an  understanding  of  the  fundamental  laws  which 
govern  the  whole  subject.  The  laws  of  the  science 
now  known  are  sufficient,  if  wisely  executed,  to  af- 
ford a  remedy  for  this  fearful  social  affliction.  If 
men  will  cease  to  confine  their  attention  to  the 
overt  act,  and  will  legislate  according  to  these  prin- 
ciples for  the  treatment  of  the  presumptive  as  well 
as  the  actual  transgressor,  the  criminal  class  will 

434 


The  Principles  of  Scientific  Penology  435 

certainly  begin  to  decrease,  and  soon  cease  to  be  a 
serious  menace  to  society.  Science  can  subdue 
criminality  just  as  it  has  subdued  typhoid  fever, 
smallpox,  diphtheria,  and  other  formerly  dreaded  dis- 
eases. It  will  hereafter  suffer  just  as  much  from  these 
scourges  as  it  deserves  to  suffer  on  account  of  its 
neglect  to  enforce  the  general  observance  of  meas- 
ures of  protection. 

Several  of  the  following  laws  are  identical  in  their 
essence ;  but,  as  logical  deductions  from  different 
premises,  they  are  restated  in  a  modified  form  in 
order  to  present  rather  a  changed  phase  of  the  prin- 
ciples than  another  law.  The  whole  code  might  be 
reduced  to  simpler  dimensions,  but  it  would  be  at 
the  sacrifice  of  definiteness  of  adaptation.  The 
laws  are  here  given  as  they  have  crystallized  in  the 
three  sections  of  the  work,  with  references  to 
the  chapter  and  page  where  they  originally  found 
expression. 

LAWS    OF    THE    SECTION    OF    DIAGNOSTICS 

General  Laws 

1.  The  scope  of  penal  legislation  must  compre- 
hend the  whole  criminal  class  :  its  origin,  its  con- 
stituents, its  aetiology,  and  its  therapeutics.     Chap, 
ii.,  p.  20. 

2.  Criminal  codes  must  be  designed   to  reform 
the  moral  depravity  of  culprits.     Chap,  ii.,  p.  25. 

3.  Society  must  assume  parental  functions  over 
all  children  lacking  proper  parental  training,  unless 


436  The  Science  of  Penology 

it  can  compel  their  exercise  by  parents.     Chap,  ii., 
p.  26. 

4.  Criminal  jurisprudence  must  provide  for  the 
proper  separate  care  and  training  of  neglected  and 
delinquent  children,  and  juvenile  offenders.     Chap, 
ii.,  p.  28. 

5.  All  wilful  violations  of  law  are  crimes  of  some 
degree.     Chap,  iii.,  p.  31. 

6.  The    proper   object    of   legal  penalties  is    to 
secure  obedience  to  the  law.     Chap,  iii.,  p.  32. 

7.  The  cause  of  crime  is  the  moral  depravity  of 
the  criminal.     Chap,  iii.,  p.  37. 

8.  Criminality  is  a  diseased  condition  of  human 
character.     Chap,  iii.,  p.  39. 

Special  Laws 

9.  Society  must  secure    protection  from  crime, 
and  the  social  disease  of  criminality,  by  treatment 
of  individual  criminals.     Chap,  iii.,  p.  40. 

10.  The  diminution  of  crime  can  be  effected  only 
by  the  confinement  of  all  detected  criminals  until 
their  moral  depravity  is  reformed.     Chap,  iii.,  p.  43. 

11.  The  cure  of  moral  depravity  in  the  criminal 
consists  in  the  elimination  of  the  cause  of  the  de- 
generation of  the  organs  of  character,  and  the  re- 
storation of  their  normal  functions.     Chap,  iii.,  p. 

43- 

12.  The  recorded  convictions  for  crime  cannot 
certainly    indicate    either    increase  or  decrease  of 
criminality,    unless  we  consider  concomitant  laws 

and  their  execution.     Chap,  iii.,  p.  45. 

28 


The  Principles  of  Scientific  Penology  437 

13.  The     restriction     of     criminality     depends 
mainly  upon  the  prevention  of  the  disease  of  moral 
depravity.      Chap,  iii.,  p.  50. 

14.  Every   person  convicted  of   crime  must  be 
kept  in  confinement  until  cured  of  the  disposition 
to  commit  crime.     Chap,  iv.,  p.  54. 

15.  Convicts  in   confinement   need,  and  are  en- 
titled to   receive,   from  the  power  which  confines 
them,  skilful  professional  treatment.      Chap,  iv.,  p. 

56. 

1 6.  A  correct  diagnosis  of  the  nature  of  the  par- 
ticular kind  of  disease  with  which  each  convict  is 
affected  is  essential  to  his  cure:     Chap,  iv.,  p.  58. 

17.  A  positive,  accurate,  and  unmistakable  iden- 
tification of  every  person  infected  with  the  disease 
of  criminality  is  necessary  for  the   protection    of 
society.     Chap,  iv.,  p.  59. 

1 8.  The   fear  of  punishment  does   not   restrain 
crime.     Chap,  v.,  p.  77. 

19.  The  penalty  inflicted  upon  criminals  for  each 
specific  crime,    to  be  useful,   must  be  immediate, 
uniform,  and  certain.     Chap  v.,  p.  84. 

20.  The    punishment    of   all    convicts    must    be 
administered  by  the  lawmaking  authority.     Chap, 
v.,  p.  88. 

21.  Special  reformatories,  under  the  management 
of  experts,  must  be  established  for  the  treatment  of 
common  drunkards  and  prostitutes.   Chap  v.,  p.  89. 

22.  Crime  is  the  unmistakable  symptom  of  dis- 
ease,— dangerous,   persistent,    contagious,   and  en- 
demic.    Chap,  v.,  p.  90. 


438  The  Science  of  Penology 


23.  All  sentences  of  confinement  must  have  only 
a  minimum  limit  for  retribution,  and  be  continuous 
thereafter  until   the  convict  is  declared   cured  by 
competent  authority.     Chap,  v.,  p.  93. 

24.  Every   developed    case    of    the    disease    of 
criminality  must  be  cured  before  society  is  again 
exposed  to  its  attack.     Chap,  vi.,  p.  98. 

25.  The  State  must  provide  skilled  penologists 
to  superintend  the  treatment  of  all  convicts.     Chap, 
vi.,  p.  1 06. 

LAWS    OF    THE    SECTION    OF    THERAPEUTICS 

General  Laws 

26.  Punishment  is  a  necessary  sequence  of  crime 
and   an    inherent    prerogative   of   the   law-making 
power.     Chap,  vii.,  p.  113. 

27.  The  punishment  must  be  fitted  to  the  crimi- 
nal, rather  than  to  the  crime.     Chap,  vii.,  p.  114. 

28.  The  element  of  full  expiation  is  now  excluded 
from    the    punishment    imposed   by   human    laws, 
which   is  restricted   to  the  function   of  protecting 
society.     Chap,  vii.,  p.  115. 

29.  Reformation    is  the    cure   of   the  abnormal 
and  diseased  condition  which  prevents  obedience 
to  law.     Chap,  vii.,  p.  116. 

30.  Legal  penalties  are  deterrent  in  proportion 
to  the  popular  estimate  of  disgrace  which  pertains 
to  them.     Chap,  vii.,  p.  118. 

31.  Every   real    criminal    must   be    confined    in 
prison  so  long  as  he  will  be  dangerous  at  large. 
Chap,  vii.,  p.  126. 


The  Principles  of  Scientific  Penology  439 

32.  The  State  must  provide  reformatory  prisons 
for  the  first  confinement  of  her  convicts,  and  con- 
fine them  in  such  reformatories  under  the  indeterm- 
inate sentence.     Chap,  vii.,  p.  127. 

33.  Temporary  imprisonment  must  never  be  im- 
posed as  a  penalty  when  any  other  can  be  made  to 
satisfy  the  conditions.      Chap,  vii.,  p.  129. 

34.  All  sentences  of  imprisonment  should  be  un- 
determined in  duration,  and  continuous  until  the 
convict  is  cured.     Chap,  viii.,  p.  156. 

35.  The    disease    of   criminality    can    be    cured. 
Chap,  ix.,  p.   161. 

36.  The  normal  action  of  the  system  depends 
upon  the  healthy  condition  of  all  its  organs.     Chap, 
ix.,  p.  167. 

37.  "  The  soul  of  all  improvement  is   improve- 
ment of  the  soul."     Chap,  ix.,  p.  169. 

Special  Laws 

38.  Drunkenness  is  a  disease  of  both  the  physical 
and  moral  character,  which  yields  to  treatment  as 
readily  as  do  other  diseases.     Chap,  x.,  p.  201. 

39.  Special  asylums  are  needed  in  every  State  for 
the    treatment    of    inebriates,    in    which    the    laws 
should  direct  their  confinement  under  the  indeterm- 
inate sentence.     Chip,  x.,  p.  204. 

40.  The  right  and  obligation  of  society  to  deal 
with    drunkenness    as    a    crime    is    incontestable. 
Chap,  x.,  p.  205. 

41.  Prostitution  is  a  crime  against  the   family. 
Chap,  x.,  p.  206. 


44°  The  Science  of  Penology 


42.  The   suppression    of   prostitution    is  also  a 
supreme  object  of  government.     Chap,  x.,  p.  209. 

43.  The  law  should  enforce  the  examination,  by 
an  expert  alienist,  of  every  prisoner  who  shows  in- 
dications  of   insanity,   or  who  pleads  insanity  in 
defense.     Chap,  xi.,  p.  218. 

44.  There  should  be  official  alienists  having  au- 
thority to  decide  all  questions  concerning  the  in- 
sanity of  persons  accused   or  convicted  of  crime. 
Chap,  xi.,  p.  229. 

45.  Special  hospitals  for  the  confinement  of  the 
criminal  insane  and  insane  convicts  must  be  estab- 
lished apart  from  prisons  and  from  general  hospi- 
tals for  the  insane.     Chap,  xi.,  p.  229. 

46.  Instinctive  and  habitual  criminals  should  be 
imprisoned  under  an  indeterminate  sentence  when 
they  are  first  discovered.     Chap,  xii.,  p.  241. 

47.  All    prisoners   arrested    for   minor   offenses 
should    be    primarily    released    upon   'conditional 
parole,   and    returned  to   prison  for   its  violation. 
Chap,  xii.,  p.  244. 

48.  The    imprisonment    of    juvenile    and    first 
offenders  should  be  absolutely  prohibited,  except  as 
a  last  resort  for  those  convicted  of  flagrant  crimes. 
Chap,  xiii.,  p.  250. 

49.  When  a  limited  imprisonment  is  necessary  it 
must  be  by  separate  confinement.    Chap,  xiii.,  p. 
250. 

50.  Juvenile  and  first  offenders  should  never  be 
confined  in  jails  with  other  prisoners   while  await- 
ing trial,  or  on  remand.     Chap,  xiii.,  p.  250. 


The  Principles  of  Scientific  Penology  441 

51.  The  supreme  object  of  the  sentence  of  a  con- 
victed juvenile  or  first  offender  is  his  rescue  from  a 
criminal  life.     Chap,  xiii.,  p.  251. 

52.  The  character  and  circumstances  of  an    ac- 
cused juvenile  or  first  offender  should  be  carefully 
investigated  and  allowed  full  weight  in  determining 
whether  he  should  be  tried  and  convicted  or  not, 
and  in  fixing  the  kind  of  sentence  which  should  be 
imposed  upon  conviction.     Chap,  xiii.,  p.  251. 

53.  The  State  should  continue  its   control   and 
supervision    of  all  its  discharged   prisoners    until 
they  have  proved  their  ability  to  live  harmlessly  at 
liberty.     Chap,  xiii.,  p.  262. 

54.  Criminals  in  confinement  should  be  made  to 
reduce  the  cost  of  their  maintenance  to  the  great- 
est   possible    extent    by    profitable    employment. 
Chap,  xiv.,  p.  268. 

55.  All  prisoners  should  be  constantly  employed 
in  useful  and  productive  labor.     Chap,  xiv.,  p.  273. 

56.  Prison  labor  should  produce  all  manufactured 
goods  and  material  for  public  institutions,  unham- 
pered by  restrictions,  in  penitentiaries  and  prisons; 
the  work  in  reformatories  should  be  strictly  educa- 
tional ;  and  short-term  convicts  should  be  employed 
on  general  public  work.     Chap,  xiv,,  p.  286. 

57.  No  convict  should  ever  be  sentenced  to  jail ; 
nor  any  minor  under  school  age  ;  nor  any  insane, 
imbecile,   epileptic,    crippled,   or  diseased  person  ; 
nor  any  for  whom   a  special    asylum  or  hospital 
exists.     Chap,  xv.,  p.  292. 

58.  A  State  police  force  is  the  first  general  pre- 


442  The  Science  of  Penology 


ventive  prescription  of  scientific  Penology.     Chap, 
xvi.,  p.  320. 

59.  The    marriage    or    cohabitation     of    idiots, 
weak-minded,  insane,   epileptics,   criminals,   inebri- 
ates, the  scrofulous,  tuberculous,  leprous,  and  the 
venereal   diseased  must  be  absolutely   prohibited. 
Chap,  xvi.,  p.  321. 

LAWS  OF  THE  SECTION  OF  HYGIENICS. 

60.  No   healthy,    normal   child   should   be   per- 
mitted to  grow  up  in  an  institution,  without  family 
training.     Chap,  xvii.,  p.  347. 

61.  The  welfare  of  society  requires  that  all  the 
minor  wards  of  the  State  be  cared  for  from  their 
birth  until  they  become  honest  and  independent 
citizens  ;  or,  if  they  cannot  be  made  such,  that  they 
be    retained    in    confinement    to    the    end    of   life. 
Chap,  xvii.,  p.  349. 

62.  It  is  the  duty  of  society,  through  its  organ- 
ized government,  to  provide  proper  parental  care 
and  training  for  all  neglected,  abandoned,  and  de- 
linquent children.     Chap,  xvii.,  p.  351. 

63.  A   complete  and  general   system   of  public 
education,  which  will  compel  the  harmonious  and 
co-ordinated  instruction  of  all  children  in  the  triune 
elements  of  good  citizenship,  the  physical,  the  men- 
tal, and  the  moral,  up  to  the  age  of  fifteen  years,  in 
either  public  or  private  schools,  instituted  by  national 
and  State  legislatures,  is  not  only  the  chief  safe- 
guard of  free  government,  but  is  the  cheapest,  most 
comprehensive,  and  most  effective  measure  for  the 


The  Principles  of  Scientific  Penology  443 


restriction  and  prevention  of  the  disease  of  crim- 
inality.    Chap,  xviii.,  p.  388. 

64.  The  State  should  insure  the  proper  educa- 
tion of  all  its  females  in  the  duties  of  motherhood. 
Chap,  xix.,  p.  392. 

65.  Science  pronounces  action  to  be  the  first  law 
of  growth.     Chap,  xix.,  p.  400. 

66.  Every  dollar  expended  by  the  State  in  pro- 
viding for  the  necessary  development  of  children 
before  reaching  school  age,  is  worth  ten  spent  after 
that  in  correction  and  education,  and  a  thousand 
expended  for   protection    from  criminality  and  in 
the  reformation  of  criminals.     Chap,  xix.,  p.  404. 

67.  The  first  duty  of  the  State  in  the  protection 
of  society  from  crime  is  to  insure  the  uniform  and 
co-ordinate    development   and    nurture    of    all    its 
children  in  their  early  infancy.     Chap,  xix.,  p.  406. 

THE    ETHICAL  PRINCIPLES  GOVERNING  THE  TRIALS  OF 
CRIMINALS 

68.  That  it  is  the  main  object  of  the  trial  to  en- 
force obedience  to  law.     Chap,  xx.,  p.  422. 

69.  That  it  is  the  exclusive  purpose  of  the  trial 
to  determine  the  measure  of  the  guilt  or  the  inno- 
cence of  the  accused  by  the  full  disclosure  of  all 
the  facts  and  law  pertinent  to  the  case.   Chap,  xx.,  p. 
422. 

70.  That  it  is  the  supreme  duty  of  the  judge  to 
compel  rigid  conformity  to  law  in  every  process  of 
the  trial.     Chap,  xx.,  p.  422. 

71.  Judges  should  control  the  conduct  of  trials 


444  The  Science  of  Penology 


by  all  the  court  officials  in  accord  with  the  estab- 
lished principles  of  justice,  right,  truth,  and  honesty. 
Chap,  xx.,  p.  424. 

72.  That   judges    shall    compel    juries    to   have 
respect  to  their  oaths  of  office,  and  conform  strictly 
to  the  principles  and  statutes  of  law  in  their  ver- 
dicts as  well  as  in  their  constitution  and  conduct. 
Chap,  xx.,  p.  425. 

73.  That  the  duty  of  good  citizens  to  serve  the 
State  on  juries  cannot  be  avoided  with  impunity. 
Chap,  xx.,  p.  426. 

74.  That  judges  shall  exact  the  services  of  all 
who  are  legally  drawn,   except  when  the  gravest 
reasons  afford  a  sufficient  excuse.     Chap,   xx.,  p. 
426. 

75.  It  is  the  first  duty  of  the  public  prosecutor  to 
obtain  a  speedy  trial  of  every  one  accused  of  crime. 
Chap,  xx.,  p.  427. 

76.  "  If  you  once  undertake  the  defense  of  a  man, 
whether  or  not  he  can  compensate  you  with  money, 
stand  by  him  to  the  last,  no  matter  what  the  preju- 
dice or  opposition  may  be  against  him.    His  lawyer's 
fidelity  must  be  persistent  and  unchangeable.     Yet 
that  fidelity  does   not  signify,  nor  imply,  that  the 
advocate  should  ever  suppress  his  individual  con- 
science, sacrifice  his  own  manhood,  or  violate  any 
law  of  good  morals.     And   so    it   may   be   said " 
Chap,  xx.,  p.  427  : 

77.  "  That  it  is  a  lawyer's  duty  to  maintain  per- 
sistently the  legal  presumption  of  his  client's  inno- 
cence and  insist  on  the  State's  proving  the  truth  of 


The  Principles  of  Scientific  Penology  445 


its  position  beyond  all  reasonable  doubt.  This  is 
the  law,  as  it  is  the  right,  of  every  case."  Chap,  xx., 
p.  428. 

78.  "  Present  every  truthful  fact  which  will  tend 
to   maintain   the    presumption    of   innocence ;  and 
every  proposition  of  law,  fairly  and  frankly,  which 
may  tend  to  hold  the  State  rigidly  to  the  obligation 
imposed  upon  it,  to  establish  the  guilt  of  the  de- 
fendant beyond  reasonable  doubt."     Chap,  xx.,  p. 
428. 

79.  "  Never  knowingly  allow  a  false  witness  to 
testify  in  behalf  of  your  client.      No  righteous  de- 
mand   of   fidelity    requires    such    conduct    on    the 
lawyer's  part."     Chap,  xx.,  p.  428. 

80.  "  '  To  thine  own  self  be  true  ;  thou  canst  not 
then  be  false  to  any  man.' '      Chap,  xx.,  p.  428. 

8 1.  "  In  the  face  of  damaging  testimony  plead 
every    mitigation   and    extenuation    which    appear 
from  the  evidence.     For  there  is  a  certain  equity 
recognized  and  approved,  as  supplemental  to  the 
law,  in  the  practice  of  even   its  criminal   branch. 
Thus,  a  poor  man  steals  bread  for  his  starving  wife 
and  children.     Judged  by  the  letter  of  the  law  he  is 
guilty  of  larceny,  but   its  spirit  as  related  to  this 
particular  case  justifies  his  escape  from  punishment, 
and  his  advocate's  urging  upon  the  trial  jury  the 
justifying  circumstances  of  the  offense."     Chap,  xx., 
p.  428. 

82.  "  Do  not  think  that  every  defendant  should 
go  to  trial.     In  case  of  legal  guilt,   in  which  the 
State,  in  your  judgment,  can  conclusively  remove 


446  The  Science  of  Penology 


the  presumption  of  the  innocence  of  your  client  and 
establish  his  guilt  beyond  a  reasonable  doubt,  it  is 
wise  policy,  in  most  cases,  to  allow  him  to  plead 
guilty  and  then  to  urge  his  equities  and  extenua- 
tions upon  the  Court  who  is  to  impose  the  sentence." 
Chap,  xx.,  p.  428. 

83.  Certainty  and  celerity  are  the  two  great 
sources  of  the  power  of  punishment  to  prevent 
crime,  which  has  been  shown  to  be  its  chief  legal 
function.  Chap,  xx.,  p.  429. 

The  sum  and  conclusion  of  the  whole  matter  is, 
that  criminality  is  a  preventable  and  curable  dis- 
ease, for  which  Penology  makes  these  prescriptions. 
They  have  been  proved  in  practice,  and  found 
efficacious.  They  cannot  be  ignored  with  safety, 
or  neglected  with  prudence.  Neither  can  society 
depend  upon  charity  or  philanthropy  to  administer 
them.  The  responsibility,  the  duty,  the  obligation, 
rests  upon  the  State  to  insure,  not  only  the  gen- 
eral welfare  of  the  community,  but  that  of  every 
individual  of  which  it  is  composed.  Indeed,  the 
general  welfare  is  the  sum  of  the  individual  wel- 
fares of  the  people,  and  is  entirely  dependent  upon 
it.  As  the  State  is  that  organization  which  the 
people  effect  for  the  general  welfare,  its  primary 
office  is  to  insure  the  individual  welfare  of  every 
one  of  its  constituents,  from  the  time  of  birth  to 
the  end  of  life.  Scientific  Penology  is  impossible, 
all  social  penal  effort  is  futile,  or  worse  than  futile, 
unless  it  is  initiated,  directed,  and  controlled  by  the 


The  Principles  of  Scientific  Penology  447 


State,  so  that  it  shall  include  every  unit  of  the 
population  within  its  constant  scope  and  care. 
The  promotion  and  preservation  of  the  intelligence 
and  morality  of  every  member  of  the  State  is  as 
vital  to  its  health,  strength,  and  life  as  are  sound 
members  to  the  human  body. 

The  unintermitted,  continual  restraint  of  the  in- 
corrigible criminal,  the  reformation  of  the  curable, 
and  the  wholesome  rearing  of  every  child  constitute 
the  triplicate  solution  by  Science  of  the  social  prob- 
lem of  Criminality. 


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449 


APPENDIX  B. 


STATISTICS     OF     ILLITERACY,     SUFFRAGE,     AND     CRIME     IN     THE 
UNITED    STATES    FOR    IQOO. 


Population  in  1900. 

Per  cent,  of  Illiterates  in  1890  of 
Population  over  10  years  of  age. 

Total  Republican  and  Demo- 
cratic Vote  in  Presidential 
Election,  1900. 

Popular  Majority  in  Presidential 
Election,  1900. 
Republican. 

Popular  Majority  in  Presidential 
Election,  1900. 
Democratic. 

Number  of  People  to  each  Demo- 
cratic and  Republican  Vote  Cast. 

Annual  Average  Number  of  Mur- 
ders during  Decade,  1890  to  1900. 

Number  of  People  in  1900  to  each 
Murder  of  the  Annual  Average 
during  Preceding  Decade. 

Alabama  

1,828,697 

4I.O 

150,037 

42,600 

12.2 

461 

3  066 

Arkansas  

1,311,564 

26.6 

125,942 

36,342 

IO.4 

•JO"; 

4^OO 

California  

1,485,053 

7.7 

289,740 

30,770 

5  i 

422 

•3    CIO 

Colorado  

539,700 

5.2 

215,805 

2Q,8o3 

2.5 

252 

2   IJ.I 

Connecticut  

908,355 

5-3 

176,586 

28  =,58 

e.  i 

77 

12  AA1 

Delaware      

184,735 

14.3 

41,423 

3  672 

4.e 

48 

•3    84.O 

Florida  

528,542 

27.8 

35,506 

2O  508 

14  0 

IC.J 

-J     -167 

2,216,331 

39.8 

116,736 

46,665 

10.  0 

381 

s  817 

l6l,772 

5.1 

56,612 

2,2l6 

2.Q. 

27 

t,QQ2 

Illinois  

4,821,550 

5.2 

1,101,046 

O4,q24 

4-4 

TIC 

If,    3O6 

Indiana  

2,516,462 

6.3 

645,647 

26,479 

3.0, 

228 

II    O37 

Iowa  

2,231,853 

3.6 

517,073 

98,543 

4.3 

2O2 

II     147 

Kansas               

I  47O  405 

4  O 

148  556 

23  354 

4.2 

27S 

6  251 

Kentucky  

2,147,174 

21.6 

461,700 

8,098 

4-6 

308 

C    3Q4 

Louisiana  

1,381  625 

45-8 

67,904 

39,438 

20.3 

358 

3,850 

Maine       ....    

694  466 

3  3 

102,258 

28,612 

6.8 

18 

38,581 

Maryland   

1,190,050 

15.7 

258,483 

13,947 

4.6 

280 

4,250 

Massachusetts  

2,805,346 

6.2 

306,163 

81,869 

7.1 

06 

29,222 

Michigan   

2,420,982 

5.9 

527,954 

IO8,OOO 

4.6 

205 

II,  8lO 

Minnnesota  .. 

1,751,304 

6.0 

30^.362 

76,145 

s.8 

T5Q 

II,IO5 

450 


Appendix  B 


Population  in  1900. 

Per  cent,  of  Illiterates  in  1890  of 
Population  over  10  years  of  age. 

Total  Republican  and  Demo- 
cratic Vote  in  Presidential 
Election,  1900. 

Popular  Majority  in  Presdential 
Election,  1900, 
Republican. 

Popular  Majority  in  Presidential 
Election,  1900. 
Democratic. 

Number  of  People  to  each  Demo- 
cratic and  Republican  Vote  Cast. 

Annual  Average  Number  of  Mur- 
ders during  Decade,  1890  to  1000. 

Number  of  People  in  1900  to  each 
Murder  of  the  Annual  Average 
during  Preceding  Decade. 

Mississippi  

1,551,270 
3,106,665 

243,329 
1,068,539 

42,335 
411,588 
1,883,669 
7,268,012 
1,893,810 
319,  !46 
4,157,545 
413,536 
6,302,115 
428,556 
1,340,316 
401,570 
2,020,616 
3,048,710 
276,749 
343,641 
1,854,184 
518,103 
958,800 
2,069,042 
92,531 

4O.O 
9.1 

5-5 
3-1 

12.8 

6.8 
6.5 
5-5 
35-7 
6.0 
5-2 
4-i 
6.8 
9.8 
45-0 
4-2 
26.6 
19.7 
5-6 
6.7 
30.2 

4-3 
14.4 
6.7 
3-4 

57,459 
666,006 
62,519 
235,848 
10,196 
90,287 

386,515 
1,500,378 
290,833 
56,410 
1,018,800 

79,9" 
1,136,897 

53,596 
50,808 

94,074 

268,258 

398,073 
92,038 
55.418 
261,945 
102,289 
218,642 

425.151 
24,646 

7,822 

19,309 
56,899 
143,606 

15,386 
69,036 
13,362 
288,433 
13,972 

14,986 

2.155 
29,719 

12,623 
21,049 
106,581 

46,003 
37,820 
",773 

2,498 
24,671 

43,7" 

22,242 
136,782 

30,215 

27.0 

4-7 
3-9 
4-5 
4.2 
4.6 

4-9 

4.8 

6-5 
5-7 
4-1 
5.2 
5-5 
8.0 
26.4 
4-3 
7-5 
7-7 
3-0 
6.2 

7.1 
5-1 
4-4 
4-9 

3-8 

317 
362 
90 

1  68 
39 
9 
1  20 

5" 
285 
29 
332 

79 
312 

52 
221 

45 
408 
1,021 

57 
6 

305 

IO2 

87 
154 
22 

3.OOI 
8,582 
2.704 
6,360 
1,  086 
45,732 
15,697 
14.195 
6,645 
11,005 
12,523 

5-235 
20,196 
8,241 
6,064 
8,924 

4.957 
2,986 

4,855 
57,274 
6,079 

5.079 

II.O2I 

13,435 
4,2O6 

Missouri  

Nebraska  

Nevada              

New  Hampshire...  . 
New  Jersey  

New  York  

North  Carolina  .... 
North  Dakota  

Ohio     

Oregon   

Pennsylvania  

South  Carolina  

South  Dakota     .... 

Texas       

Utah    

West  Virginia  

4,318 

Totals  

74,610,523 

13-3 

13,575,  53C 

1,443,  12g 

581,484 

5-5 

9,75-4 

7,649 

APPENDIX  C. 

NUMBER  OF  HOMICIDES,  EXECUTIONS,  AND  LYNCHINGS 
IN  THE  UNITED  STATES  COLLECTED  BY  THE  CHI- 
CAGO TRIBUNE  FROM  NEWSPAPER  REPORTS  FOR 
EIGHTEEN  YEARS. 

Year.  Suicides.  Homicides.  Hangings.  Lynchings. 

1882 1,467 121 117 

1883 1,697 .  . . 107 135 

1884 1,465 123 195 

1885 1, 808 108 181 

1886 1,499 83 133 

1887 2,335 79 123 

1888 2,184 97 144 

1889 3,567 98 175 

1890 4.290 102 126 

1891 5,906 123 195 

1892 6,791 107  235 

1893 6,615 126 .200 

1894 9,8OO 132 190 

1895 IO,5OO 132 I?! 

1896 IO,652.  .  122 131 

1897 9,520 128 166 

1898 7,840 109 127 

1899 6,225 131 107 

1900 6,755 8.275 "9 "5 


452 


INDEX 


Abnormals  require  more  than  penal- 
ties, 116 

Action  and  reaction  measure  pun- 
ishment, 113 

Alienists,  expert,  to  be  called  by 
State,  214;  229 

Allen,  Prof.  W.  H.,  constitution- 
ality of  State  police,  323 

Allison,  Dr.  W.  E.,  life  convicts  in 
Matleawan,  213  ;  on  insanity  and 
homicide,  215  ;  high  criminals  in 
Matteawan,  217  ;  criminal  insane, 
227-231 

American     Government    Christian, 

383 
Appellate    court    for    discharge   of 

prisoners,  150 

Approximation,  limits  of,  60 
Arrests  and    convictions  in    United 

States,  and  costs,  312 
Asylums  for  defective  children,  349 

B 

Barrows,  Hon.  S.  J.,  reformatory 
system  in  United  States.  133;  261 
Bertillon  system  of  identification, 
60  ;  described,  62,  65  ;  for  census, 
use,  66  ;  a  system,  67;  use  with  im- 
migrants, 68,  69  ;  defence  against 
recidivism,  99  ;  central  bureau  at 
Washington,  99  ;  proof  of  per- 
sonality, 142  ;  records  in  re- 
formatories, 1 80  ;  district  centres 
proposed,  288 
Bible  in  American  institutions,  and 

history,  384 

Birth-  and  death-rate  in  France,  208 
Booth,  Ballington,  Hope  Halls,  261 
Boston,  document  158  ;  varieties  of 

crime  in,  314 
Breese,  Justice,  definition  of  crime, 

30 

Brinkerhoff,  Gen.  R.,  quoted,  55 
Brockway,    Z.    R.,    prison    science 


working  out  a  system,  5  ;  degrees 
of  depravity,  24  ;  quoted,  55  ; 
recidivism,  97  ;  father  of  reforma- 
tories, 134  ;  demonstration  of, 
159  ;  per  cent,  of  failures,  160 ; 
number  of  convicts  observed, 
162  ;  characterization  of  criminals, 
162 ;  classification  of,  164 ;  on 
habitude,  166  ;  on  conditions  of 
release,  185  ;  convicts  from  insti- 
tutions, 336 

Buckle,  quoted,  29 

Burglary,  penalties  for,  in  New 
York,  142 

Bushnell,  Dr.  Horace,  epigram  on 
reformation,  169 


Capital  crimes,  indeterminate  sen- 
tences inapplicable  to,  157 

Cassidy,  Michael,  55 

Castration  for  sexual  crimes,  92  ;  123 

Children,  police  care  of,  in  public 
places,  322 

Christian,  American  government  is, 
383 

Christian  theory    of      reformation, 

159. 

Chronic  incorrigibles,  188 

Church  and  State,  religious  separa- 
tion of,  365 

Citizenship,  elements  of  good,  365 

Civilization  gauged  by  public  mor- 
ality, 380 

Clement  XI.  built  St.  Michaels,  135 

Convicts,  in  Pennsylvania.  8 ;  pro- 
portion to  crimes,  5 1  ;  State  con- 
trol of,  103  ;  entitled  to  State 
care,  105  ;  average  age  of,  163  ; 
per  cent,  fit  for  military  drill,  178 

Cooperage,  effect  of  prison  labor  on, 
268 

Corporal  punishment  of  prisoners, 
307 

County  jails,  W.  F.  Spaulding  on, 
104 


453 


454 


Index 


Crime,  costs  in  Pennsylvania.  Mas- 
sachusetts, and  United  States,  10  ; 
Dr.  Eugene  Smith's  estimates,  II  ; 
prevention  of,  14  ;  denned,  18, 

30  ;   variations  in,    18  ;    statistics 
of,    18  -;      ethical     divisions     of, 

31  ;  classified  in  United  States  cen- 
sus, 33 ;  culpability,  34  ;  symptom 
of  a  condition,  35  ;  causes  of,  37  ; 
cures,  40  ;  extraneous  causes   of, 
44  ;  illiteracy,  47  ;  a  violation  of 
State  law,  87. 

Crimes,  proportion  unpunished,  75  ; 
resulting  from  drunkenness,  198 

Criminal  class,   number  in    United 
States,  7  ;  in  Massachusetts,  7,  8 
law   of   criminal  saturation,    15 
composition  of,   17  ;  defined,  17 
variation     in     numbers     due    to 
changes    in    laws,    18 ;    necessity 
of  class  treatment,  19  ;  proportion 
to  population,   19  ;  Dr.   Drahms' 
categories,  20 ;  22  ;  recruited  from 
resumptive  class,  25 

Criminal  codes,  as  antiquities,  6 ; 
purpose  of,  25  ;  failure  of,  32  ; 
cruelty  of  early,  73  ;  should  re- 
gard criminal,  rather  than  the 
crime,  92  ;  uniformity  necessary, 
loo  ;  foundation  of  all  codes,  419 

Criminal  lawyers,  practice  of,  421 

Criminality,  to  be  cured  as  a  disease, 
14  ;  natural  to  the  savage,  16  ;  how 
suppressed,  19 ;  diagnosed,  27- 
58  ;  a  disease,  38  ;  141  ;  prognosis 
of,  1 60 

Criminals,  age  and  sex  of,  9  ;  pre- 
sumptive defined,  20 ;  moral  de- 
pravity of,  22  ;  differences  in 
appearance,  24  ;  require  expert 
treatment,  55  ;  insane  in  United 
States,  223  ;  laboratories  for  study 
of,  305 

Crises  in  American  history,  388 

Croup,  per  cent,  of  cures  of,  160 

Cruelty  of  early  codes,  73 

Cummings,  Prof.  E.,  penal  aspects 
of  drunkenness,  202 

D 

Death,  in   infancy   preferable    to  a 

criminal  life,  413 
Death  penalty,  76 ;  where  abolished, 

119  ;    discussed,  121 


Defectives,  mathematical,  173  ;  con- 
trol, 174;  general,  174;  parental 
training  of,  356 

Depravity,  moral,  universal  among 
criminals,  24 

Development,  arrested,  Prof.  Fer- 
rero  on,  357 

Devine,  E.  T.,  on  care  of  depend- 
ent children,  351 

Diagnostics  of  penology  defined,  13 

Dietary  in  Reformatories,  175 

Discharge,  of  the  reformed,  148  ;  tri- 
bunal of,  154  ;  appellate  court  for, 
156;  of  insane  criminals,  232 

Discipline,  by  physical  pain,  179  ; 
by  demerit  marks,  184 ;  prison, 

303 

Diseases,  per  cent,  of  cures,  160 ; 
which  induce  crime,  49 

District  centres  for  Bertillon  system, 
285 

Doe,  Judge,  on  responsibility,  223  ; 
insanity  a  disease,  225 

Drahms,  Dr.,  categories  of  crimi- 
nals, 20 ;  22  ;  the  occasional  crim- 
inal, 23  ;  environment  and  crime, 
48  ;  recidivists,  96,  234 ;  impris- 
onment, 129  ;  appearance  of  re- 
cidivists, 237  ;  juvenile  offenders, 
247 

Drunkenness,  arrests  for,  88  ;  re- 
formatories for,  88  ;  a  sin,  193  ; 
Sir  Matthew  Hale,  Draco,  Lycur- 
gus,  Dr.  Harris  on,  194 ;  in  Mas- 
sachusetts, 195  ;  arrests  for,  in 
Suffolk  Co.,  Mass.,  197  ;  percent, 
of  criminality  resulting  from,  198  ; 
a  crime  of  first  magnitude,  198  ; 
causes  of  failure  to  suppress  by 
law,  199  ;  plea  in  mitigation,  199  ; 
a  curable  disease,  200 ;  poverty 
and  pauperism  traced  to,  200 ; 
penal  aspects  of,  202  ;  sentences 
for,  205 


Education,  overcrowding  in  schools, 
46  ;  Washington  on,  359  ;  congres- 
sional action  on,  360  ;  other  Presi- 
dents on,  361 ;  United  States 
Commissioners'  report  on,  364, 
3°9.  373  I  moral,  neglected,  367  ; 
national  control  of,  371 


Index 


455 


Edwards,  Jonathan,  family  of,  327 
Elmira  Reformatory,  per  cent,  of 
depravity  among  the  inmates,  24  ; 
per  cent,  of  cures  in,  126  ;  175  ;  of 
failures,  156;  age  of  inmates,  163; 
per  cent,  of  inmates  used  to  me- 
chanical work,  166  ;  daily  routine 
in,  172  ;  trades  classes,  175  ;  tech- 
nical trainingin,  175  ;  military 
drill  at,  176  ;  intellectual  studies 
at,  180  ;  merit  and  demerit  marks 
in,  184  ;  earnings  of  paroled  pris- 
oners, 1 86  ;  term  of  securing  pa- 
role, 187  ;  cost  of,  191  ;  cost  of 
maintaining  inmates,  191  ;  ances- 
try of  inmates,  248  ;  home  life  of 
inmates,  354 
Emerson,  R.  W.,  on  cause  and  effect, 

112 

Endlich,  Judge,  on  expert  testimony, 

225 
English,  development  of   Teutonic 

codes,  72  ;  reformatories,  juvenile 

offenders  in,  247 

Epileptics,  irresponsibility  of,  220 
Expert  criminologists  needed.  55 
Expert   testimony,    Judge    Endlich 

on,  225 

F 

Fear,  no  deterrence  from  crime,  76 
Female  convicts,   disproportion  of, 

88;  reformatories,  192;  296 
Ferrero,  Prof.,  on  arrested  develop- 
ment, 357 

Ferri,  Prof.,  law  of  criminal  satu- 
ration, 15  ;  categories  of  criminals, 
22  ;  on  unpunished  crimes,  75  ;  on 
recidivists,  234 
Fichte's  social  contract,  115 
Fines  and   imprisonment,    separate 
penalties,  157  ;  to  be  worked  out, 
253;  284 

First  offenders,  treatment  of,  128 
Folks,   Homer,  on  State  aid  to  in- 
stitutions, 351 

Foreign  population  of  our  prisons, 
68  ;  names  on  criminal  court  cal- 
endars, 69 

France,  birth-  and  death-rate  in,  208 
French  code,  responsibility  for  crime 

by,  222 

Froebel,  Fred.,  inventor  of  Kinder- 
garten, 402 ;  speech  at  Luben- 


stein,    403 ;    appeal    to    German 
wives,  405 


Garrett,  Hon.  Philip  C.,  dispropor- 
tion of  female  convicts,  88 

German  code  on  responsibility  of  the 
insane,  222 

Grant,  Gen.  U.  S.,  on  public  educa- 
tion, 361 

H 

Habit,  law  of,  Dr.  C.  W.  Warner 
165 

Habitual  criminals,  treatment  of, 
85  ;  Morrison  on,  239 ;  J.  J. 
Lytle  on,  242 

Hale,  Sir  Matthew,  on  drunkenness, 
104 

Harris,  Dr.  E.,  on  drunkenness,  194 

Henderson,  Prof.  C.  R.,  on  prison 
laboratories,  309 

Heredity,  326 

Hospitals,  children's,  348 

Humbert,  King,  murderer  of,  iden- 
tified, 66 

Hygienics  of  Penology  defined,  13 

I 

Illiteracy  not  cause  of  crime,  46 
Illiterate  voters  in    United    States, 

358 
Immigrant  children,  infant  nurture 

of,  in  United  States,  400 
Immigrants  convicted  of  crime  to  be 

returned,  70 
Imprisonment  for  certain  crimes  as 

punishment,    125  ;    for   life,   125  ; 

cruelty  of  unlimited,  152 
Incorrigibles,  chronic,  188 
Indefinite  sentences,  where  used, 

U3 

Indemnification,  State  to  secure, 
130 

Indeterminate  sentences  applicable 
to  all,  90;  where  adopted,  143; 
physical  obstacles  to,  144  ;  meta- 
physical obstacles,  145  ;  Dr.  C. 
T.  Lewis  on  constitutionality  of, 
146-153  ;  inapplicable  to  capital 
crimes,  157 

Industrial  schools  the  primaries  of 
reformation,  293,  346 


"' 


456 


Index 


Innocence,  legal  safeguards  of,  per- 
verted, 78 

Insane,  the  responsibility  of,  by 
German,  French,  and  New  York 
codes,  222  ;  hospitals  for  criminal, 
231  ;  discharge  of  criminal,  232  ; 
asylums  for  criminal,  299 

Insanity,  plea  of,  in  defence,  214  ; 
importance  of,  216  ;  responsibility 
in,  219  ;  the  "  wild  beast  "  law  of, 
221 

Inspectors  of  State  prisons,  83 

Instinctive  criminals,  treatment  of, 

85 

Institutions,  life  in.  fruitful  of  crim- 
inality, 336  ;  modern  child-saving, 
337  ;  classes  of,  needed,  344;  State 
aid  to  private,  350 

Intellectual  culture  in  Elmira,  180 


J 


Jails,  Dr.  Eugene  Smith  on,  129  ; 
county,  use  for,  290 

Jefferson,  Thomas,  on  public  edu- 
cation, 361 

Johnson,  Mrs.  Ellen  C.,  192 

Judges,  discretion  of,  in  sentencing, 
81  ;  duty  of,  in  criminal  trials, 
424 

Jukes,  the  family  of,  328 

Juries,  duty  of  good  citizens  to  serve 
on,  429 

Jury  trials,  abuse  of,  79  ;  illegal  ver- 
dicts by,  427 

Justice,  origin  of  idea,  and  of  legal 
penalties,  114 

Juvenile  offenders,  not  to  be  confined 
with  criminals.  101  ;  probation 
officers  for,  131  ;  crime  increas- 
ing, 245;  defined,  246  ;  in  English 
prisons  and  reformatories,  247; 
courts,  342 

K 

Kant,  on  expiation,  115 

Kellor,  Francis  A.,  the  criminal 
negro,  400 

Kindergartens,  advantages  of,  407  ; 
of  San  Francisco,  407 ;  train 
mothers,  407  ;  Dr.  Harris  on,  409  ; 
normal  schools  for  teachers  of, 
409  ;  where  to  be  established,  411  ; 


State  should  provide,  412  ;  in  or- 
phanages, 413  ;  growth  and  cost 
of,  in  United  States,  493 


Laboratories,  for  study  of  criminals, 

305 
Laloue,   M.,  on    contamination    by 

association,  251 
Law,    of    criminal    saturation,    15  ; 

human,    enacts     public    opinion, 

122 
Law   and    crime,  relation  between, 

in  Massachusetts,  313 
Law  of  balance,  Froebel's,  404 
Lawyer,  on  trial  as  well  as  client, 

419  ;  responsibility  of,  proportion- 
ate to  talent,  422 
Lecour,  M.,  on  prostitution,  208 
Legal  technicalities  perverted,  80 
Lewis,  Dr.  C.  T.,  on  fixed  penalties, 

142  ;  on   indeterminate  sentence, 

146;  153 

Life  terms  discussed,  127  :  an  ob- 
jection to  indeterminate  sentence, 
155  ;  convicts,  in  Matteawan,  213 

Limited  sentences  cause  discharge 
of  worst  criminals,  161 

Lincoln,  A.,  no  adequate  punish- 
ment possible  for  assassin  of, 
114;  on  public  education,  361 

Lombroso,  Prof.,  occasional  crim- 
inals, 23 

Longfellow.  H.  W.,  on  "  Law  of 
Balance,"  404 

Lytle,  J.  J,,  on  habitual  criminals, 
242 

M 

Madmen,  criminal,  category  neg- 
lected, by  Dr.  Drahms,  21,  56 ; 
treatment  of,  85 

Malpractice  to  treat  criminals  ignor- 
antly,  55 

Marriage,  power  of  State  to  regu- 
late, 325  ;  Drs.  Strahan  and  Mc- 
Kim  on,  326 ;  restriction  by  law, 
330 

Marshall,  Chief  Justice,  or.  limits  of 
responsibility,  221 

Martha's  Vineyard,  53 


Index 


457 


Massachusetts,  arrests  in,  in  1898,  8  ; 
cost  of  crime  in,  n  ;  criminal 
history  in,  44;  statistics  of  crime  in, 
48  ;  non-resident  convicts  in,  71  ; 
reformatory  prison  for  women  in, 
192  ;  crime  in  Suffolk  Co.,  195  ; 
bureau  of  statistics  on  crime,  195, 
196  ;  arrests  for  drunkenness  in, 
197 ;  non-resident  criminals  in, 
241  ;  probation  in,  255  ;  analysis 
of  sentences  in,  255  ;  Prison  Asso- 
ciation Bulletin,  257  ;  cost  of 
unnecessary  sentences,  257 ;  re- 
lation between  law  and  crime  in, 

313 

Maternal  nurture  of  infants,  393 ; 
evil  of  lack  of  instruction,  396 

Mathematical  defectives,  173 

Matteawan  insane  hospital,  life 
convicts  in,  213 ;  murderers  in, 
217 

Maudsley,  Dr.,  on  responsibility  of 
the  insane,  222 ;  in  mental  dis- 
orders. 238 

McClaughry,  Maj.  R.  W.,  cited,  55; 
introduced  Bertillon  system,  64 

McKim,  Dr.,  heredity  and  human 
progress,  53,  326 

McKinley's  election,  effect  on  na- 
tional wealth,  358 

Mechanical  work,  per  cent,  of 
Elmira  inmates  used  to,  176 

Medicine,  Public  hygiene,  and  state 
of,  in  United  States,  160 

Mental  training  in  schools,  379 

Merit-marks  in  reformatories,  184 

Military  drill  at  Elmira,  176;  per 
cent,  of  prisoners  fit  for,  178 

Military  spirit  cultivated  by  a  State 
police,  321 

Mills,  Hon.  Luther  Laflin,t>n  crim- 
inal law,  420;  rules  for  defendants, 

431 
Moral  depravity  the  cause  of  crime, 

37 

Moral  responsibility  for  crime,  43 

Moral  training  should  be  chief  ob- 
ject of  schools,  381 

Morality,  public,  the  gauge  of  civil- 
ization, 380 

Mothers,  good,  equal  to  two  genera- 
tions of  good  fathers,  395  ;  influ- 
ence of  Kindergartens  on,  408 

Murder,  penalty  for,  121 


X 


National  Bureau  of  Identification, 
65  ;  National,  or  control  of  edu- 
cation, 371 

Negro  children,  infant  nurture  of, 
in  United  States,  400 

New  York  City,  proportion  of  con- 
victions to  arrests  in,  75  ;  recidiv- 
ists confined  in,  97  ;  prison  labor 
in,  107 ;  comparison  of  prison 
and  reformatory  results,  136 ; 
code,  on  responsibility,  222 

Non-resident  convicts  in  Massa- 
chusetts, 71,  241 

Normal    man,    what    is    the  ?   38 ; 

Normal  schools  for  instruction  of 
teachers,  391 


O 


Offend,  to,  an  infant,  is  to  injure, 

415 

Offenders,  the  single,  23,  57 ;  treat- 
ment of,  128 

Opinion,  public,  laws  the  enactment 
of,  122 

Orphanages,  Kindergartens  in,  413 

Overt  act  alone  subject  to  laws,  77 


R 


Recidivists,  number  of,  in  confine- 
ment, 74  ;  half  the  prisoners,  96  ; 
most  dangerous  criminals,  96 ; 
Brockway's  estimate,  97  ;  cost  to 
public,  97  ;  restriction  necessary, 
97 ;  in  New  York  prisons,  97 ; 
defence  from,  98  ;  proportion  of, 
234  ;  characteristics  of,  235  ;  237  ; 
Paul's  description  of,  236 ;  cost 
of,  in  United  States,  315 

Reformation,  the  cure  of  abnorm- 
ality, 116  ;  a  punishment,  139  ; 
a  punitive  reaction,  140 :  motive, 
contrasted  with  the  punitive,  141 ; 
a  Christian  theory,  159 ;  cash 
savings  by,  161 ;  philanthropic 
object,  161  ;  five  elements  of, 
162  ;  three  lines  of  direction,  167  ; 
intellectual,  168 ;  chaplains  in, 
168  ;  means  to  be  used,  169  ;  time 
needed  for,  187  ;  cost  of,  compared 
with  prisons,  191 


458 


Index 


Reformatories,  and  prisons  in  New 
York,  136  ;  credits  and  debits  in, 
171  ;  promotion  in  grades,  171  ; 
dietary,  175  ;  studies,  180;  ethical 
and  moral  training  in,  182  ;  merit 
and  demerit  marks,  184 ;  labor 
in,  185  ;  limited  commitments  to, 
185  ;  number  to  be  designed  for, 
190,  294 

Reformatory  system  in  United 
States,  164,  166 

Reign  of  law,  the,  support  of  lawyers 
to,  418 

Responsibility  in  insanity,  219,  220  ; 
Judge  Doe  and  Justice  Perley  on, 
223 

Retribution  assumed  by  the  State, 

73. 

Routine,  daily,  in  Elmira  Reforma- 
tory, 172 


Sanborn,  F.  D.,  quoted,  55 
Sanger,  Dr.,  on  prostitution,  207 
Savage  man  a  criminal,  15 
Schaffer,    Dr.,   on    high   schools   in 

Pennsylvania,  375 

Schools,  public,  failure  of,  363  ;  per 
cent,  of  attendance  in,  363  ;  brief 
attendance  in,  364  ;  Berlin  aver- 
ages>  364 ;  boards,  368,  377 ; 
teachers  unfit,  365  ;  pay  of  teach- 
ers, 369 ;  expenditures  for,  in 
United  States,  377  ;  physical  train- 
ing in,  378  ;  mental,  376  ;  moral, 
381  ;  opening  exercises,  386  ;  sec- 
tarianism to  be  avoided,  387 
Sexual  crimes,  penalties  for,  123  ; 

castration  for,  192 
Sherborn  Reformatory  for  women, 

192 

Signalments,  by  Bertillon  system,  60 
Single  offenders,  treatment  of,  86 
Smallpox,  per  cent,  of  cures  of,  160 
Smith,  Dr.  Eugene,  costs  of  crime, 
II,   334;  on  prisons,    129;   inde- 
terminate sentence,  141  ;  parental 
discipline,  395 

Sociology  founded  on  Penology,  4 
Spanking,  a  means  of  discipline,  179 
Spaulding,  W.  F.,  on  jails,  104 
Spencer,    Herbert,    plan   of   educa- 
tion,   376 ;    normal    reaction    of 


wrong,  387  ;  instruction  in  duties 
of  parents,  389,  402 
State,  supervision  of  children,  102, 
338,  399  ;  control  of  all  criminals, 
must  execute  its  laws,  103  ;  duties 
to  convicts,  105,  106,  188  ;  prison 
commissioners,  155  ;  duty  to  pre- 
sumptive criminals,  333  ;  minor 
wards  classified,  338  ;  care  over 
minors,  legal  requisites  for,  341  ; 
system  needed  for  care  of  depend- 
ents, 352;  control  of  school  system, 
372 ;  to  provide  Kindergartens, 
412  ;  moral  obligations  to  infants, 

415 

Stephen,  Sir  J.  F.,  criminal  law,  31 
Strahan,  Dr.,  on  drunkenness,  194  ; 

heredity  and  marriage,  326 
Streets   and    public    places,    police 

care  of  children  in,  322 
Superintendent  of  reformatories,  183 
Supplies,  purchase  and  issue  of,  in 

reformatories,  179 
Swett,  Prof.,  children  to  be  taught 

to  do  what  is  right,  386 
Synectic  causes  of  crime,  41 


Taney,  Justice,  definition  of  crime, 
30 

Teutonic  codes,  English  develop- 
ment of,  72 

Thayer,  on  evidence,  Si 

Thefts  and  robbery  in  the  U.  S., 
amount  of,  12 

Therapeutics  of  Penology  defined,  13 

Thorp,  Jos.  G.,  penal  aspects  of 
drunkenness,  202 

Tracy,  Justice,  the  "  wild  beast 
law,"  221 

Trades  classes  and  technical  train- 
ing in  Elmira,  175 

Trial,  speedy,  due  to  both  sides,  430 

Tribunal  of  final  discharge,  154 

Tribune,  Chicago,  statistics  of  mur- 
ders, 84,  executions,  120 

Truant  schools,  organization  of,  345 

U 

Uniformity  of  criminal  codes  neces- 
sary, 100 

United  States,  proportion  of  con- 
victions  to  arrests  in,  75  ;  murders 
in,  84 


Index 


459 


Vicious,  the  incurably,    disposition 
of,  189 

W 

Wardens,  power  of  discharge,  149  ; 

difficulties  of,  150 
Warner,   Dr.   C.   W.,  law  of  habit, 

165  ;  on  clean  newspapers,  181 
Warner,  Judge    E.    M.,    the    sober 

man's  burden,  200 
Washington,    on   public   education, 

359  . 

Whipping,  for  certain  crimes,  124 
Wines,  Dr.  F.  H.,  changes  in  crim- 
inal law,  35 


Wines,  Drs.  E.  C.  and  F.  H.,  quoted, 
55  ;  on  penalties,  118  ;  homicides, 
119;  murders  and  executions, 
119  ;  salvation  by  love,  184 

Winship,  Dr.  A.  E.,  the  Jukes- 
Edwards  families,  326 

Wistar,  Gen.  I.  J.,  delay  of  trials, 
80 

Wives  and  mothers,  Froebel's  ap- 
peal to,  405 

Women,  Massachusetts  Reformatory 
for,  192 

Wright,  Dr.  C.  D.,  variation  in 
statistics  of  crime,  18  ;  influences 
of  changes  in  laws  on  crime,  44  ; 
variation  in  penalties,  83  ;  intem- 
perance and  crime,  124  ;  prison 
labor,  266 


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